Mark Tushnet
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Articles by Mark Tushnet
Clearing Up Some Misconceptions About FDR’s Court-Packing Plan
This article is part of Cafe, TPM's home for opinion and news analysis. The Overton window on expanding — or packing or unpacking — the Supreme Court is now wide enough that it's worth revisiting one inevitable part of the conversation: FDR's Court-packing proposal in 1937. Misconceptions about the events abound in popular discussions.
The Collaborative Constitution
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The Purported Chaotic Mess of Tariff Refunds
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Damage Control in the Roberts Era
In 1890 Louisiana’s legislature passed the Separate Car Act, which required racial segregation on trains in the state. In response, New Orleans residents formed the Citizens’ Committee, a multiracial coalition, to work toward repealing the statute. The committee eventually turned to the courts. In June 1892 it got Homer Plessy, classified by the state as Black, to attempt to sit in the “white” section of a train.
Mark Tushnet
In 1890 Louisiana’s legislature passed the Separate Car Act, which required racial segregation on trains in the state. In response, New Orleans…
Damage Control in the Roberts Era
Damage Control in the Roberts Era Progressive activists face an increasingly hostile legal environment. What strategies can they pursue? ▪ August 19, 2025 In 1890 Louisiana’s legislature passed the Separate Car Act, which required racial segregation on trains in the state. In response, New Orleans residents formed the Citizens’ Committee, a multiracial coalition, to work toward repealing the statute. The committee eventually turned to the courts.
How to reform judicial review responsibly
L.W., a transgender girl, her parents, and her doctor agreed that it would be good and medically appropriate for her to receive gender-affirming hormone therapy. The state of Tennessee, where L.W. lived, passed a statute in 2023 prohibiting transgender minors from receiving such treatment. Did the statute discriminate against L.W. on the basis of sex? The US Supreme Court said it didn’t.
How to reform judicial review responsibly
L.W., a transgender girl, her parents, and her doctor agreed that it would be good and medically appropriate for her to receive gender-affirming hormone therapy. The state of Tennessee, where L.W. lived, passed a statute in 2023 prohibiting transgender minors from receiving such treatment. Did the statute discriminate against L.W. on the basis of sex? The US Supreme Court said it didn’t.
The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them
BOOK REVIEW The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them By Aziz Rana, University of Chicago Press, 2024. First published: 23 June 2025 No abstract is available for this article.
Cleansing Public Debate
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A Justice Souter Anecdote, or “Seeing a World in a Grain of Sand”
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When "Good" Laws are Given to Bad People
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Why I Signed the Harvard Law Professors Letter
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Who Am I to Judge? Judicial Craft versus Constitutional Theory
ISBN13: 9780300277012 To be Published: April 2025 Publisher: Yale University Press Country of Publication: USA Format: Paperback Price: £25.00 A leading legal scholar asks a fundamental question: Do we need a theory of constitutional interpretation? Do we need a theory of constitutional interpretation? It is a common argument among originalists that however objectionable you may find their theory, at least they have one, whereas their opponents do not have any theory at all.
FO° Talks: Every Theory of Constitutional Interpretation Is Wrong
Anton Schauble introduces Mark Tushnet, a leading scholar of constitutional law who has taught at prestigious universities and clerked for US Supreme Court Justice Thurgood Marshall. Mark’s recent book, Who Am I to Judge? Judicial Craft Versus Constitutional Theory, argues that no theory of constitutional interpretation is effective in constraining judicial decision-making, not just the more rigid ones like originalism.
Comparative Reflections on Mahmoud Khalil's Case
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Courts and the Trump administration: Obi-Wan Kenobi saving us or speed bumps?
One month into the second Trump administration, it has become the conventional wisdom that the courts are the only real forum for the opposition. Democrats are locked out of power in the House and Senate. Democratic governors can’t do anything about the assaults on the agencies and employees of the national government. The victims of the government’s self-dismantling are too scattered to mount effective opposition in the streets. What can we expect from the courts, though?
Opinion - Courts and the Trump administration: Obi-Wan Kenobi saving us or speed bumps?
One month into the second Trump administration, it has become the conventional wisdom that the courts are the only real forum for the opposition. Democrats are locked out of power in the House and Senate. Democratic governors can’t do anything about the assaults on the agencies and employees of the national government. The victims of the government’s self-dismantling are too scattered to mount effective opposition in the streets. What can we expect from the courts, though?
Thinking Way Outside the Box
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Taking "Offers to Pay for Registering" Seriously (Probably a Mistake)
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"NSFW" and Probably NSF My Reputation)
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Is Democracy Coming to the USA? (with a nod to Leonard Cohen)
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On the Genre “Too Much Law/Too Little Law”
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Today's Supreme Court and the Administrative State
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Preliminary and Tentative Thoughts
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Textualism and Linguistic Drift
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Sandra Day O'Connor versus Oliver Cromwell
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Rahimi as a Class Essay
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On or About January 1979 the World of Legal Scholarship Changed
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Strategic Litigation as Seen by Journalists and Academics
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Writing "For the Ages," Judicial Estoppel, and Trump v. United States
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Mark Milley and the Constitution
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Balkinization: Charles Fried
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My Nervousness About the “Plagiarism” Flap
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How the Supreme Court Court Rule Against Trump in the Colorado Case (and Why It Might Not Matter That Much)
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Enduring Legal Scholarship
Most legal scholarship is ephemeral but some is not. What are the characteristics of enduring legal scholarship? Her I’ll proceed sort of inductively: Suppose someone asked me to compile a reader of enduring constitutional scholarship—defined roughly as work published more than forty or so years ago that remains worth reading because it illuminates contemporary issues. What articles would I include?
Ephemeral Legal Scholarship (subspecies Normative Structural) II
The most recent thing I picked off the shelf was a symposium issue from 2006 on the emergency Constitution. And, as with the book mentioned in the first of these posts, I started reading articles and quickly did no more than leaf through the issue. One reason is that many of the articles were either drawn from the author’s then recently published work or became part of later larger works that I’d already read (a phenomenon I mentioned in the prior post as well).
Ephemeral Legal Scholarship (subspecies Normative Rights-Based) I
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Supreme Court Reform Redux
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An Open Letter to the Biden Administration on Popular Constitutionalism
Aaron Belkin and I have written the following open letter to the Biden administration urging that it endorse and take steps to implement popular constitutionalism as a response to what the President has described as "not a normal" Supreme Court. We urge readers to let the administration know in their own ways that reinvigorating the long and honored tradition of popular constitutionalism is both viable and urgently needed in today's circumstances.
How Creative 303 v. Elenis Threatens the Existence of Anti-Discrimination Laws
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Review - Power to the People
Power to the People: Constitutionalism in the Age of Populism By Mark Tushnet and Bojan Bugaric Oxford University Press, 2021 Power to the People is a turning point in constitutional scholarship on populism. According to a widespread view, populism is necessarily anti-pluralist, inherently anti-institutional and hence incompatible with constitutionalism (e.g. Müller, 2017). Andrew Arato and Jean Cohen offer the most refined version of this argument.
A Dictionary of Law: Oxford Quick Reference
A Dictionary of Law: Oxford Quick Reference Jonathan Law £13.99, Oxford University Press ★★★★✩ I have not bought a law dictionary for over 40 years. The last and only one I acquired was during my law degree. I wanted a guide to the odd expressions, code words, Latin terminology and jargon. I found it useful in my studies and interesting as most of these words have historical significance.
A Practical Guide to Residential Freehold Convey
A Practical Guide to Residential Freehold Conveyancing Lorraine Richardson £29.99, Law Brief Publishing ★★★✩✩ When I first started work in the world of residential conveyancing as a secretary (shortly before the last Ice Age), there was a serious shortage of information around in the ‘ready reference’ section of the legal library.
Smart Legal Contracts: Computable Law in Theory and Practice
Smart Legal Contracts: Computable Law in Theory and Practice Edited by Jason Grant Allen and Peter Hunn £95, Oxford University Press ★★★★★ This volume is edited by Jason Grant Allen, senior research fellow at the Humboldt University of Berlin, and Peter Hunn, member of the UK Jurisdiction Taskforce chaired by the master of the rolls Sir Geoffrey Vos.
Hosting Andrew
Hosting Andrew John Lawrance £9.99, Book Guild Ltd ★★★✩✩ How would you like to swap lives with someone else? Perhaps wake up in another lawyer’s body; someone who has a trophy spouse, is a partner in a top firm and has a Bentley. Sounds too good to be true. Perhaps the high life is not all you hoped for. Hosting Andrew is a great tale about two solicitors who have an operation at the same time and in the same hospital. Only one wakes up and he is in the wrong body.
O'Connor's Departure Will Move Court to Right
RENEE MONTAGNE, host: Commentator Mark Tushnet is the author of "A Court Divided: The Rehnquist Court and the Future of Consitutional Law." He has the second of two perspectives on Justice O'Connor's retirement. MARK TUSHNET: Justice Sandra Day O'Connor has been what some scholars have called the most important justice for more than a decade because she, more than anyone else, cast the deciding vote in close cases.
A Very Belated Review
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The Hughes Court
‘No one understands the politics of law better or takes the law more seriously than Mark Tushnet. With a complete mastery of the decisions of the Hughes Court, Tushnet shows us the justices as they saw themselves, professionals of disparate backgrounds, temperaments, and talents, dispatching, with the tools at hand, the disputes that ceaselessly came to them. Familiar constitutional landmarks are here, as is the high drama of Franklin D.
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