Mark Tushnet

talkingpointsmemo.comClearing Up Some Misconceptions About FDR’s Court-Packing PlanThis article is part of Cafe, TPM’s home for opinion and news analysis....

An explainer on Court packing/expansion/unpacking: talkingpointsmemo.com/cafe/clearin...

Alas, “The Diplomat” missed the opportunity for a lesson on the 25th Amendment, although technically the issue remains open for the next season.

What used to be called a bleg: I have at 2300 word essay, “Clearing Up Misconceptions About FDR’s Court-Packing Plan,” that I’d like to pitch to suitable outlets. Seeking relevant contact info (a Substack note is possible but it’d be nice to have a wider readership).

substack.comMark Tushnet (@marktushnet)I’m thinking of writing a long-form “op ed” on “Understanding the 1937 Court-Packing Precedent,” but pending that, some thoughts about the frequently expressed concern, most recently by Steve Vladeck,...

A substack note on the "race to the bottom" concern about Court expansion/unpacking/packing: substack.com/@marktushnet.... The short form bottom line: It's more complicated than usually presented.

youtube.com"The Constitutional System of Nepal: A Contextual Analysis" | CCC Book Launch RoundtableYouTube video by Warwick Centre for Constitutions in Context

I was part of a panel discussing Mara Malagodi’s terrific new book on Nepali constitutionalism, www.youtube.com/watch?v=Hrl2.... My remarks introduced yet another adjectival constitutionalism—“musical chairs” constitutionalism, building on ideas about what constitutions are supposed to do.

FWIW—I just dropped my early voting ballot off in Maryland and deliberately chose to avoid the post office in favor of an equally nearby dropbox. Not that having the post office not deliver my ballot would matter in Maryland but I didn’t want to give them the opportunity for satisfaction.

substack.comMark Tushnet (@marktushnet)Kate Shaw’s NYT op ed and Beau Baumann’s reaction provoke these thoughts from a long-time “get rid of juristocracy” advocate (whose views include a. bunch of partial replacements like subconstitutiona...

A substack post on the case for and against left-ish support for Supreme Court Reform: substack.com/@marktushnet...

Not a specialist, but shouldn’t D-affiliated lawyers be preparing & even filing civil actions (fraud, derivative suits, False Claims Act suits) targeting Trumpist corruption? (thinking ahead abt effects of 1/20/29 10 AM prospective pardons for other forms of accountability)

hls.harvard.eduHarvard Law scholars debate constitutionalism, democracy, and the limits of judicial power - Harvard Law SchoolAs part of a panel on his new book, Professor Emeritus Mark Tushnet and his co-author weigh the pros and cons of the elastic governing principle.

A book launche vent for Constitutionalism and Its Discontents: hls.harvard.edu/today/harvar...

My feed sent me a headline from the Guardian that a court “injuncts” a demonstration. Claude reports a blog saying that UK lawyers often say a court "injuncts" an infringer. Same source: Ngram rates of about once per 10 million in British English. “Enjoin” seems fine to me, but what do I know?

balkin.blogspot.combalkin.blogspot.com

17 Sept

A review symposium on Constitutionalism and Its Discontents (something do-able these days only via a blog): balkin.blogspot.com/2026/09/balk...

1/3 I saw a memorial notice for Paul Bender. IIRC he lost his position as Deputy Solicitor General b/c he took the entirely defensible position in a child porn case that the fed statute required that the child’s genital area be at least partially visible. ...

2/3 On remand the lower ct rejected the position & b/c of the controversy the US didn’t appeal. I once tried to get permission to use a Sally Mann photo as an example of the problem but her manager refused permission. ...

3/3 Bender was also deeply principled pro-animal rights, the type who scoops up spiders in the house & takes them outside.

1/ If I have this right, per Alito in the post office case the states’ equity in the claim that complying with the PO rule would wreak havoc is weakened because it’s their fault that they persuaded judges to rule prematurely that the PO didn’t have the authority to issue the rule. ...

2/ I would have thought that it was the judges’ fault but what do I know. Seems like Alito would be a fan of the famous “orphan’s chutzpah” plea for mercy (for novices, “I killed my parents, have mercy on me because I’m an orphan”).

14 Sept

I don’t follow pop culture closely but this season’s ”Lioness” has the first MAGA/Trump view of foreign affairs plot that I’ve run across. I know there are more or less fake movies along the same lines but this feels more “not extreme.” On Paramount, though who knows when the plot was developed.

2 Sept

Isn’t there an obvious alternative characterization to “The case should be treated as a departure from the Ct’s prior jurisprudence. Unfortunately, this is not the first time this has happened”?

1 Sept

1/ A 🧵on SCt justices’ paper from one who's been there (from Van Devanter to TM & Blackmun, though not everyone in between): (a) They don’t always answer the qs you’re asking (currently working on a paper about confessions w/ important opinions by FF and Rbt Jackson & papers are uninformative)...

1 Sept

2/ (b) Have to do source-criticism (FF is unreliable abt personal relations among JJs, WJB’s “case histories” sometimes exaggerate his role). (c) Not everything impt is recorded (important convos b/t Potter Stewart, WJB, and Blackmun in Roe have to be inferred from documents)….

1 Sept

3/ (d) Clerks sometimes eventually (25 yrs out) blab but always distort “their” justice’s role (mostly positively but sometimes negatively—check out Barrett Prettyman Jr. on FF). (e) Docket sheets tedious but really valuable, but availability quite variable.

28 Aug

1/ Prove me wrong: Not an election law specialist but aren’t there red flags in reports abt a White House meeting at which Trump worked with folks from “his” SuperPAC to devise midterm spending strategy? Theory of SuperPACs is they’re making independent expenditures not coordinated w/ candidate….

28 Aug

2/ Was a big deal when candidate was allowed to speak at SuperPAC event on condition he wouldn’t ask for donations. Also, actions as a candidate aren’t official acts so not immune under under Trump v US.

12 Aug

Hypothesis: Dog whistle racism is politically effective for Rs but flat out open racism isn’t. About to be tested?

10 Aug

What used to be called a bleg: Looking for articles, preferably academic, describing successful interest group lobbying for legislation in Canada,UK, France, Germany & if possible similar articles describing politics behind enactment of “public interest” legislation (climate stuff would be nice).TIA

1 Aug

This is an amazing book—a “biography” of a tract of land. Stylistically dazzling and compelling as a narrative

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.comSlaughtering the Administrative State | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed AmericaUsing the Court’s decision allowing the President to remove members of independent agencies from their offices we range rather widely—into a discussion of departmentalism, the strategic problems facin...

29 July

As promised, Slaughtering the Administrative State, with takes you really won’t find in other podcasts: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/sla... open.spotify.com/episode/3Hy5... podcasts.apple.com/us/podcast/s...

global.oup.comglobal.oup.com

28 July

For some reason this isn’t generating an image, but Constitutional Democracy in Crisis II? is now available for purchase: global.oup.com/academic/pro...

28 July

An important debate on spectrum spanning the center-left to the DSA left is whether the post-electoral-victory program is restoration or reconstruction. The next episode of Supreme Betrayal sketches the difference and comes out against restorationism. Coming soon-ish.

26 July

22 July

Received an unsolicited draft from an unknown correspondent. Started to read it, suspected it was AI generated, used an AI detector, which said it was (“100% chance”). Stopped reading—but the thesis was sort of interesting & if not preempted arguably publishable if a human revised it. Lesson unclear

brennancenter.orgA Mild Dissent on How We Discuss DissentsIn considering the value of dissents, we should focus on substantive contributions to constitutional analysis and not just celebrate that our system allows them.

7 July

A big day for small-ish publications: www.brennancenter.org/our-work/ana...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.comReligion, Federalism, and the Boundary Problem | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed AmericaWe use a recent decision by the Fifth Circuit upholding a Texas statute requiring the display of the Ten Commandments in public school classrooms as a jumping off point to discuss not only the religio...

7 July

New episode of Supreme Betrayal on who gets to decide who gets to decide: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/rel... open.spotify.com/episode/0POC... podcasts.apple.com/us/podcast/r...

constitutionalstudies-ojs-utexas.tdl.org View of Review of Donald L. Horowitz, The Promise and Perils of Devolution: Federalism, Regional Autonomy, and Ethnic Conflict; Reseña de Donald L. Horowitz, The Promise and Perils of Devolution: F...

7 July

My most recent, a review of Donald Horowitz on federalism, with some broader reflections on geography and constitutionalism: constitutionalstudies-ojs-utexas.tdl.org/cs/article/v...

29 June

Ds should embrace Slaughter b/c it will let them (if they win in 2028) fire their MAGA-a**es then rebuild (not restore). More TK on Supreme Betrayal in a few weeks

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.comThe Slush Fund Kerfuffle | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed AmericaWe discuss the slush fund kerfuffle with Professor Smauel Bagenstos, who served as general counsel to the Department of Health and Human Services and has written a forthcoming article on slush funds. ...

19 June

Supreme Betrayal episode on the slush fund kerfuffle interviewing Sam Bagenstos (quoting Carl Sandburg at the end): supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the... open.spotify.com/episode/1wFQ...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the...

19 June

cambridge.orgJudicial Time: A Research Note | Journal of Law and Courts | Cambridge CoreJudicial Time: A Research Note

17 June

Just published: Judicial Time—A Research Note, which provides some I hope helpful ways of thinking about the current moment in the Supreme Court. In theory open access but I haven't been able to get the links to work correctly. Better luck to the rest of you!: www.cambridge.org/core/journal...

blog-iacl-aidc.orgComparative Constitutional Law: Fourth Edition — IACL-IADC BlogVicki C JACKSON, Mark TUSHNET, Rosalind DIXON & Madhav KHOSLA The authors of the fourth edition of the casebook Comparative Constitutional Law (OUP 2026) introduce the new edition, key changes ...

16 June

An interview with the authors of the 4th edition of our Comparative Con Law casebook examining some of our choices (and yours, should you choose to take the assignment!): blog-iacl-aidc.org/just-publish...

Mark Tushnet reposted

Thomas M. Keck

@tmksyracuse.bsky.social

10 June

I've got a chapter on free speech and democratic backsliding in this forthcoming edited volume. From what I've seen, there will be many great chapters, including one from the late Ran Hirschl (may his memory be a blessing). I'm honored to be included.

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.comThe Callais Decision Part II | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed AmericaIn our second episode on the Callais decision we turn to criticism, though only after doing our best to identify some things in the decision that might be correct. Among our concerns are whether the C...

9 June

Supreme Betrayal on Callais pt 2: criticisms & reflections on court-defined democracy: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the... open.spotify.com/episode/26uW... supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.comThe Callais Decision Part I | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed AmericaIn the first of two episodes about the Callais decision we speculate about its immediate impact on the 2026 elections, with Mark trying to minimize that impact and Mike arguing that it’s likely to be ...

3 June

Just dropped the latest episode of Supreme Betrayal, the first of two on the Callais decision: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the... podcasts.apple.com/us/podcast/t... open.spotify.com/episode/26uW...

22 May

Ran Hirschl’s continuing scholarship: In an as yet unpublished (I think) essay Ran suggests de-coupling constitutionalism from geography without re-attaching it to the international legal regime—I suspect this will be foundational for a great deal of productive scholarship.

15 May

A short reflection on my and Robert Post’s volumes in the Holmes Devise, and Post’s response: HTTPS://DOI.ORG/10.59015/JACH.FGYD2485 HTTPS://DOI.ORG/10.59015/JACH.TSFX3077

youtube.comRethinking Constitutionalism | Mark Tushnet & Arnav Mathur | LAOT PodcastYouTube video by Law and Other Things (LAOT)

15 May

Yet another interview about constitutionalism with an Indian interlocutor: www.youtube.com/watch?v=mYXJ... open.spotify.com/episode/3OvQ...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.comConstitutional Theory and Constitutional Time | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed AmericaToday we take up a challenge to our views about the tension between democratic self-governance and the contemporary form of judicial that Mark draws from the scholarship of political scientists includ...

15 May

New Supreme BetrayalbEpisode: Do political scientists’ descriptions of SCOTUS behavior have normative implications? Mark--maybe, Mike--no: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con... open.spotify.com/episode/77vG... podcasts.apple.com/us/podcast/c...

11 May

Another hardball play if Ds win House: Invoke s. 2 of 14th Amend and reduce seats for Callais-redistricted states (“in any way abridged” not = “abridged on account of race”). Specialist in census & statistics needed here.

11 May

Picking up on someone else’s invocation of the “republican form of government” clause (with no capital-R): Real const’l hardball--If Ds win even a narrow majority in Nov, in Jan refuse to seat representatives from states that “Callais-redistricted.” (Specialist in cong’l procedure needed here.)

thewire.inInterview | Can Constitutions Keep Majoritarians in Check?Mark Tushnet says that many people have become disillusioned with constitutional frameworks because the governments created by and operating within them have failed to deliver substantive policies.

11 May

FWIW, an interview I did for an audience in India: thewire.in/law/intervie...