Josh Blackman is a professor of law at South Texas College of Law Houston. He writes frequently about the Supreme Court, constitutional law, and any other legal topics that come his way. You may have seen his commentary in the Wall Street Journal or on his eponymous blog. Below is his conversation with Curtis Herbert.
Curtis’s questions are in bold; Professor Blackman’s answers are in plain text.
What was high school like for you? Did you know you wanted to do law stuff and teach?
Oh no, no, no. No, not at all. I went to Staten Island Technical High School, which has now become somewhat famous, but it wasn’t very famous when I went. We mostly had engineering stuff. I did okay in AP political science, and I liked all those sorts of classes, but I was really more interested in science. I didn’t decide that I wanted to go to law school until my junior or senior year of college, and I actually wanted to do IP work because I have a tech background. I didn’t take a single con law class until my second year in law school. But once I started law school, I realized that I loved con law.
So, you’re a busy man. You have teaching, writing, an insane speaking tour, you founded the Harlan Institute, Fantasy SCOTUS, and you work with LexPredict. How do you balance it all?
I have a lot of structure in that I know how much time something will take, and I work very quickly to achieve it in that time. So as long as I have a general idea of my schedule, I don’t fall too far behind, and I try to always get things done when they are due. But I have a wide range of interests, and I’m very fortunate that the job I have allows me to do so many fun things. I love what I do, and it’s very fun. I’m always very fortunate to do what I do for a living.
You certainly seem to have a lot of fun on your blog. How do you find such interesting and unique things to talk about?
Well, the beauty of my job is that current events largely dictate what I write about. Every day, there is some new issue that hasn’t been considered before that implicates federal or state constitutional law. And I’m often asked to decide, on a fairly expedited basis, how to think about those cases. So it’s a very fast-moving career. I’m grateful that I have this opportunity, but I never know in a given week what will happen. And indeed, since President Trump’s election, that process has sped up rapidly. The first month, January 2017, right after the inauguration, I did over 100 media interviews because things were moving so quickly. I think it’s slowed down a little bit now – not so much because there’s not new stuff, but because people have become sort of numb to it, and they don’t overreact the same way they did over a year and a half ago. But I think a lot of the challenge is trying to keep sane, and keep a sober and neutral approach, and not simply fly off the handle whenever something new happens. People want cerebral analysis as best they can.
I suppose the hot takes can’t reign supreme forever.
Yeah, I’ve made a conscious effort to not do hot takes anymore. I used to. They’re time-consuming, they’re often wrong when you look at things so quickly, so I’m trying to take some reflection time before I go off the rails and drop a hot take. I try really hard not to. It’s not always possible, because generally, the way our press works is the first person to write something gets to define the narrative. So when you don’t come out first, you let someone else define the narrative, and they could be deadly wrong about it. Once people get their initial perception, they don’t change it.
Then you also have to engage on their terms rather then setting the agenda for yourself, which is another issue.
Yeah, I try very hard not to feel compelled to respond to other people. It takes a lot of self control, especially on Twitter, to just let something sit and not respond, but trying to dissuade people on social media is a waste of time; you’re not going to win. And if you’re trying to tell someone they’re wrong, you’re not going to prevail either. So I don’t go down that road. I don’t think it’s productive, but there are a lot of things you can do to try and educate people short of arguing back and forth.
Shifting a little bit to the current Supreme Court term, I think the million dollar question is: do we get Chief Justice Roberts in Shelby County, or do we get the Chief in NFIB? Do you think we get a restrained Chief, a squishy minimalist, as Ilya Shapiro might say, or will Roberts shift towards Justice Alito or Thomas?
One thing to know about Chief Justice Roberts: he always disappoints me. At every juncture, he always finds a way to disappoint me, and I think he will continue to do so. In the olden days, about six months ago, lawyers would try to write briefs to appeal to Justice Kennedy; they could basically write ‘Kennedy’ on the cover of the brief. And I think now, everyone is going to try to appeal to Chief Justice Roberts at every juncture, hoping that his concerns for the institution and for minimalism will persuade him to resist his conservative instincts.
I think it’s very silly and transparent; Roberts is going to do what he wants to do. He will probably moderate a little bit more than before. I think Roberts will try and follow precedent unless it’s an issue he cares a lot about, like affirmative action or voting rights – so the question is if it’s an issue he really cares about. With the Obamacare case, I don’t think it’s an issue he really cares about, unlike, say, affirmative action or voting rights, which are areas where he could probably push the court to the right. I don’t know about other topics, but he will disappoint me like he usually does every June.
Let’s get a bit more technical. One thing that jumped out at me when I was reading the most recent edition of the Harvard Law review was the piece on Lucia v. SEC, and I recall reading a blog post of yours about whether Mueller could be considered an employee rather than an officer. How is that question changed by Lucia?
So the short answer is: I think there’s an open question here. Under our Constitution, you have the Appointments Clause. And the Appointments Clause allows the President to appoint people to certain types of principal positions with the advice and consent of the Senate. For other types of positions, called inferior officers, Congress can allow that person to be appointed without Senate consent. But there are lots of people who aren’t principal officers, and who aren’t inferior officers, who are something else. The Court has generally called these people ‘employees,’ whatever that means.
With Mueller, one of the aspects of his position is that it is temporary. As soon as he finishes his job, his office dissolves. And the Court, in Lucia, said that one of the aspects of an officer is that it’s a permanent, ongoing position; it doesn’t disappear after a single job is done. So I think you have a credible argument that Mueller isn’t at all an officer, but he is in fact an employee. Then you have a problem, I think, in that Mueller is exercising some real, substantial authority as a special counsel. And I don’t know that a non-officer can exercise that sort of authority. If we’re right that Mueller isn’t an officer, than I don’t think he can exercise that sort of power. That’s a long, complicated analysis, and the Court hasn’t addressed it yet, but I think they will, especially in light of Lucia.
Sort of in line with the Appointments Clause: what’s your take on acting Attorney General Whittaker?
I’m still thinking. It’s a very difficult question, and there are some things we don’t know, like whether he has a new salary, whether he took a new oath of office, whether he has a new commision. So I’m reserving judgement until I see the DOJ’s brief in one of the many cases concerning Whittaker. I think there is good evidence on both sides, and I’m holding judgement.
Will it be like the travel ban case, where it goes to the Supreme Court very quickly?
Well, the urgency here is that there are going to be literally thousands of challenges to Whittaker’s authority. Every immigration appeal in which the AG is trying to be substituted will have this as an issue. And some judge, somewhere, is going to issue a ruling that Whittaker is not the correct AG. At that point, it will just be a race to the Supreme Court, because you can’t have a divided executive branch. If Trump loses, then that means that, whether he likes it or not, Rosenstein is now the acting AG, not just the deputy. Trump will have an AG he doesn’t want. I suppose he could just fire him, but that would leave all sorts of other problems. It’s difficult.
So you think at some point we will have a nationwide injunction?
Well, to be precise, it wouldn’t be an injunction. It would be a declaration to stop the substitution of Whittaker for Sessions. So it’s not really a nationwide injunction, but it would have that effect.
Okay. Just to clarify, though: would that remove Whittaker’s authority as AG?
If the Supreme Court were to rule that Whittaker needed Senate approval, then it would. I suppose the Trump administration could tell the Supreme Court: screw you, who the hell do you think you are, but I think it’s more likely that they would insert Rosenstein. Or he could perhaps substitute someone else that has been Senate-confirmed.
What are the odds we get an ex parte Merryman situation, where the executive branch, like you said, goes: who do you think you are, what are you doing, I’m going to willfully disregard your order.
Well, you know with Merryman… Have you read Seth Barrett Tillman’s article? Lincoln never actually ignored Taney in Merryman. Most law professors don’t even know this. But to your question, I don’t think he would. He hasn’t yet.
You’ve written about model rule 8.4(g.) which you think imposes on the first amendment rights of lawyers. To tie this back to social media, what if a lawyer is disbarred for a tweet that displays some sort of animus?
Right. So 8.4(g) limits speech that relates to the practice of law that a lawyer knows or reasonably should know could be harassing to others, which includes demeaning speech. One of the questions is: does 8.4(g) apply to Twitter? To the extent that using your tweets in conduct related to the practice of law might be considered, but I’ll answer your question more generally. Can a person be disciplined for engaging in tweets that are deemed harassing? And I think at some point, some bar association somewhere will try to lump in that sort of conduct, and I think it raises very significant First Amendment concerns. The courts have allowed the imposition of liability for workplace sexual harassment because it creates a hostile working environment that actually interferes with your work. I don’t think you can extend that to a mere tweet, from someone you don’t even know. We’re going to have this issue at some point, and hopefully the First Amendment prevails.
The answer to this next question might disappoint me. Is there any hope for those of us who want to see the Privileges or Immunities Clause resurrected? Or is it gone for good?
I think I will disappoint you with my answer. The Court had a shot to give the clause some meaning in McDonald, and only Justice Thomas did. He was the only one willing to do so. Now, the case involved guns, so perhaps in the future some of the more liberal Justices will be willing to consider it if it doesn’t involve guns. But I think it’s very unlikely for a couple of reasons. Substantive due process will give the more liberal-minded justices all of the things they want, and the Privileges or Immunities Clause will terrify the right the way substantive due process does. I think it’s very unfortunate, because this is one area where I think there is widespread agreement that Slaughter-House was wrong. Pretty much everyone agrees on that. But for the Court, precedent was too strong.
150 years is pretty difficult. That’s a lot of rocking of the boat there.
Yeah, well, look at the New Deal era cases. We’re about 70 or 80 years from there, and Justice Thomas is really the only one willing to revisit those cases, and he’s the only one willing to revisit Slaughter-House. After a certain point, stare decisis takes over.
With regards to birthright citizenship, what are the odds that the more traditional, present-day interpretation of the 14th Amendment will prevail?
Well, look: to the extent that you have a longstanding practice that people rely on, birthright citizenship is one of them. If you were to suddenly say that, retroactively, people are not citizens if their parents were not citizens, suddenly you would have millions of citizens become non-citizens. And there’s no way to untangle that mess. But I think you don’t even need to rely on stare decisis. I think, as an original matter, the better answer is that the phrase ‘subject to the jurisdiction thereof’ concerns people who are here subject to our laws, and I think that is all you need to know. Once you accept that original meaning, then that’s the end of it. I think there is evidence that goes the other way, but the best answer is to have birthright citizenship.
What do you think about the Commerce Clause? Is that an issue that the Chief Justice doesn’t care enough about?
Well, even in the Obamacare decision, he was willing to limit the expansion of the Court’s Commerce Clause jurisprudence, but then he turned around and saved it with a saving construction. He might be willing to limit it, but I don’t know to what extent.
My understanding of the Commerce Clause is that you never really see Congress’s power reduced. It either plateaus, or it rises.
The way my colleague Randy Barnett describes it is “this far, but no farther.” The Court has gone up to a certain point in Raich, wherever that is, but they won’t go beyond that. I think at this point the Roberts Court will hold the line, even if they won’t pull the line back a little bit.
How do you square Scalia’s more expansive reading of the Necessary and Proper Clause in Raich given his position on Necessary and Proper in Printz?
You know, there are some people who think that Scalia’s opinion in Raich is like the drug exception to the Commerce Clause. I don’t quite go that far. I think what Scalia was saying is that when you have these very intricate, complicated schemes that are long-standing, like interstate regulation of narcotics, that Congress has a certain leeway. Printz was unique; it was unprecedented. There has never been a law where Congress attempted to commandeer, or force, state officials to perform federal tasks of this nature. So I do think you can distinguish Printz and Raich on those grounds, although Scalia’s willingness to find a market for interstate drugs is a tough one to square away with the Lopez decision, with respect to an interstate market for guns, and Morrison as well.
Just to play devil’s advocate, I think the ‘drug exception to the Commerce Clause’ position is supported by Scalia’s opinion in Employment Division v. Smith. That’s not the sort of ruling that you might expect from Scalia.
Well, you’re asking a very good question, and I think Scalia’s opinion in Smith is more reflective of his opposition to the decision in Sherbert v. Verner, and the notion that courts can carve out exceptions for generally applicable laws. And even if you read Church of Lukumi Babalu Aye v. City of Hialeah, Scalia wrote a concurring opinion in which he sort of groused, and was like: I don’t really like this, but I think you have to do it. I do think later in life that Scalia had second thoughts about Smith, and I wouldn’t be surprised if the Court revisits Smith in the near future now that he’s gone.
Would a revisiting of Smith cast any doubt on Trump v. Hawaii?
I don’t think so. I’ve made this point several times: I don’t think the Establishment Clause applies in the same fashion to domestic law as it does to foreign policy or immigration. I think that’s the principle of Trump v. Hawaii. The Court says: We’re not applying the case law for the Ten Commandments displays to foreign policy and immigration. I don’t know if it affects that. There is a case this term on this Maryland cross, and one of the questions is what test should we apply? Do we apply Lemon? Do we apply Town of Greece? So I think we might actually get some clarity from the Court about this exact issue.
My understanding is that Lemon isn’t well-regarded in conservative circles, but that’s just what I’ve heard.
The problem with Lemon isn’t whether I like it or not – the problem is that it’s not consistently applied. If the test was actually consistently applied I wouldn’t mind it so much, but the Court seems to apply Lemon every couple years and then never again. So I think there’s a good chance the Court just kills Lemon all together. The Court just hasn’t consistently applied it. In McCreary County they kind of applied it, but not really, in Van Orden they didn’t, in Town of Greece v. Galloway, (that was the prayer case,) they didn’t apply it – so I think it’s not a very good test to apply.
You have a knack for making legal issues comprehensible and easy to follow. Where did you get that from?
I don’t know where I got it from. I think about how to say things in a clear fashion, where there is no ambiguity, all my words are chosen in a specific fashion, so that my reader knows exactly what it is I am trying to convey. I do this in my writing, but also in my teaching. When I teach students, I teach students from all across the country at different schools. These students have different backgrounds and different approaches. I don’t presume anything. When I walk into a class, or when I go give a lecture on the road, I assume my audience knows nothing. I assume they’ve never heard of me, and I start from scratch. My hope is that if I write clearly, and assume people know nothing, that it will be understandable. And I work very hard. I can spend minutes on a sentence, just rearranging the words, seeing which one reads better. I always want my audience to know exactly what I’m saying so there’s no ambiguity, no misplaced modifier, no long clauses where in the middle of the sentence, you forget what the hell the subject is. It sometimes has a more staccato, a more short, pointed approach, but I prefer clarity over flowery language.
It’s a good approach when you’re writing tests.
Yeah. When you’re writing exams, you have to anticipate every single issue that may arise – students might run into a problem, but you can’t answer their questions during the exam. So I try to eliminate as many problems as I can, and make the exams as stripped down and narrow as possible.
Before I leave you, I have a bit of trivia for you. Are you prepared?
Okay. This justice’s father was a renowned poet whose most famous poem was about the U.S.S. Constitution.
Yeah. It was Holmes. His father is actually in my American literature textbook. There are several pages of his poetry.
I knew his father was a poet, though I’ve never read any of the Oliver Wendell Holmes Sr. poetry. Was it good? Do you like it?
It’s very good. It’s written in this very direct fashion, where every other syllable is emphasized; it’s iambic. He has 8 syllables in a line, and then 6, and then 8, and then 6. It’s very short and to the point. It has a nice rhythm to it.
And that’s the end of the interview. Thanks for reading!