Jonathan Nash

In response to the prosecution by Special Counsel Jack Smith on federal charges arising out of the 2020 election and the events of January 6, 2021, President Trump claimed that as president he was entitled to immunity from criminal prosecution. After losing in the district court and court of appeals, he appealed to the Supreme Court.

Emory University will host the 2024 Conference on Empirical Legal Studies.

Since President Biden took office, the Department of Justice has been granted two delays in the House Judiciary Committee's long-running quest to compel Don McGahn, Trump's former White House counsel, to testify before Congress. Professor Jonathan Nash told The Hill that the Biden administration may believe the best path forward is to settle the case in order to avoid a decision that could hurt the executive branch's interests. A court win could create an unwelcome precedent the next time Republicans wield oversight gavels, he added.

President Joe Biden has announced 11 nominations for federal judgeships (including Emory Law grad Julien X. Neals 91L). What are their chances in a still-polarized Senate? Professor Jonathan Nash tells Reuters there are structural impediments to how far Republicans can go to obstruct Biden's effort to reshape the judiciary. Legislators who oppose nominations risk offending colleagues who make recommendations on judgeships in their states. "You're more likely to see (Republicans obstruct) Supreme Court nominees, and the appellate courts," Nash said.

President Trump's judicial appointments include three judges seated on the influential DC Circuit, Professor Jonathan Nash writes for The Hill. And while a stream of federal judges appointed in the past four years may have bolstered the GOP majority on some courts of appeals, the president's legacy will likely be more limited than commonly assumed, Nash says.

"Recent news coverage reveals that Democrats in the Senate are split over the path they should take regarding rules governing the confirmation of federal judges," Emory Law Professor Jonathan Nash writes for The Hill. "A path forward might be found by looking backward," he says. Nash points to a Carter administration-era agreement between Senators Jacob Javits and Daniel Patrick Moynihan. "For more than 20 years in the closing decades of the last century, the senators agreed to divide responsibility for recommending nominees to the president for federal district judgeships."

In Franchise Tax Board of California v. Hyatt, 139 S. Ct. 1485 (2019), the United States Supreme Court held that one state cannot constitutionally waive another state's sovereign immunity with respect to suits filed against the second state in the courts of the first state. In so doing, the court overruled its decision in Nevada v. Hall, 440 U.S. 410 (1979).

In Knick v. Township of Scott, Pa., 139 S. Ct. 2162 (2019), the Supreme Court overruled decades-old precedent to hold that Takings Clause plaintiffs can come to federal court without first exhausting their state court remedies. The court's holding discards a 1985 ruling the consequences of which went far beyond what the justices in that case likely contemplated when they first required exhaustion of state remedies.

Professor Johnathan Nash recently discussed United States v. Nagarwala, on the Volokh Conspiracy blog. The U.S. Department of Justice brought criminal charges in a case involving alleged female genital mutilation, in violation of a federal statute. A district court dismissed most of the charges, saying Congress exceeded its constitutional powers in enacting the statute. The DOJ later declined to appeal. Now, the U.S. House of Representatives seeks court permission to intervene and seek reversal of the court's judgment on appeal. Nash argues Article III standing barriers facing the House are substantial.

Professors Polly Price and Jonathan Nash were recently honored for scholarly writing.

After the retirement of Justice Anthony Kennedy, President Donald Trump will try to appoint "another reliable conservative," Emory Law Professor Jonathan Nash writes for The Hill. "On a court of nine, there will always be some Justice whose beliefs place him or her in the middle among his or her colleagues," he writes. "Therefore, assuming President Trump's nominee will not be a swing vote, a sitting Justice will assume that role. It is likely that the new swing vote will be Chief Justice Roberts."

U.S. Supreme Court Justice Anthony Kennedy's resignation has led to discussion of how the court may swing to the right, given President Donald Trump's goal to appoint a more conservative jurist. Emory Law professor Jonathan Nash told 11Alive he expects a nominee will surface soon. "I think we'll have a nomination by then [the new term in October]," Nash said. "I don't know if we'll have a confirmation by then."

Professor Jonathan Nash has assumed the role of director of the Emory University Center for Law and Social Science.

An opinion article concerning lateral moves by judges, by Emory Law Professor Jonathan Nash, was published in the Los Angeles Daily Journal. The subscriber-only op-ed was based on Nash's 2017 article in the Vanderbilt Law Journal, which you may read by following the link.

Doug Jones' win in the recent special election for Alabama's U.S. senator is likely to have an immediate effect on the Trump White House's freedom in selecting nominees for the federal bench. "Now, with the Republican Senate majority reduced to one," the Trump Administration must consider "the loss of two Republican Senators will doom a nomination," Professor Jonathan Nash writes for The Hill.

The Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted in 1996, principally to circumscribe the scope of federal habeas corpus review, Professor Jonathan Nash writes for The Hill. "In AEDPA's wake, federal habeas relief will not be available merely because the federal habeas court disagrees with the state court's adjudication. For a federal habeas court to intervene, it must be the case that the state court adjudication was inconsistent not just with some general understanding of the 'clearly established law' at the time, but rather with law that was at the time clearly established by the U.S. Supreme Court," the op-ed reads.

In June, the U.S. Supreme Court voted 4-2 in Ziglar v. Abbasi--a case brought by detainees in the wake of the 9/11 attacks, alleging grave mistreatment at the hands of federal executive branch officials. "Here, oddly, four justices--what I have called a 'minority majority"--is technically enough to constitute a majority," Emory Law Professor Jonathan Nash writes in a column for The Hill. He argues such opinions should receive limited precedential effect.

"The Advocate Health Care Network opinion was authored by Justice Elena Kagan, an appointee of President Barack Obama," Emory Law Professor Jonathan Nash writes for The Hill. "While Kagan has exhibited a penchant for textualism over the years, this opinion is a tour de force in textualist interpretive technique."

In Trump v. International Refugee Assistance Project, the Supreme Court stayed portions of lower courts' preliminary injunctions, "thus allowing substantial swaths of the temporary travel ban to go into effect. The cases may not ultimately result in a complete victory for the Trump administration (insofar as the Court has yet to rule on the merits, and issues of potential mootness loom over the case)," Professor Jonathan Nash writes for The Hill.

"With controversy seemingly engulfing the Trump administration on a daily basis, it is noteworthy that the president earlier this month announced a second substantial slate of lower federal court judicial nominees," Professor Jonathan Nash writes for The Hill. "This slate of judges confirms three aspects of the president's strategy for selecting judges for the federal courts that the previous slate suggested."

Did politics play a part in the Fourth Circuit's 10-3 decision to enjoin enforcement of President Trump's proposed travel ban? "It is hardly surprising that, faced with a highly politically salient and divisive case, a court comprised lopsidedly of judges appointed by Democratic Presidents would vote overwhelmingly in a liberal direction," Emory Law Professor Jonathan Nash writes for The Hill.

President Trump continues to select federal judge nominees from lists created by right leaning think tanks during his campaign. There are certainly enough vacancies, about 150 positions, on the lower federal courts to keep the White House busy, Emory Law Professor Jonathan Nash writes in an essay for The Hill. "As these nominations roll in, we will gain more traction on how Trump plans to remake the federal judiciary," he writes.

Richard Freer has been named Charles Howard Candler Professor. Michael Kang has been named Thomas Simmons Professor. Jonathan Nash has been named Robert Howell Hall Professor. Polly Price has been named Asa Griggs Candler Professor. Teemu Ruskola has been named Jonas Robitscher Professor.

Beneath the radar, President Trump nominated Judge Amul R. Thapar to a seat on the U.S. Court of Appeals for the Sixth Circuit. "The nomination says something about Trump's strategy for filling the numerous vacancies on the lower federal courts," Emory Law Professor Jonathan Nash writes for The Hill. "And in the long run, it may have a larger impact than the nomination of Gorsuch" for the Supreme Court.

EPA Director Scott Pruitt's mission to roll back Obama EPA regulations, particularly on climate, could be as simple as rereading the Clean Air Act, Bloomberg News writes. "If confirmed as administrator, Pruitt could revive some of the arguments he had offered against Obama-era EPA regulations, reading new limits on the agency's power that could pass judicial muster," the story says. Nash commented on how using the Chevon rule affects agency policy.

President Donald Trump's derisive comments about judges, including Federal District Judge James Robart, whom he labeled a "so-called judge" have been widely criticized, Emory Law Professor Jonathan Nash writes for The Hill. But Trump is only continuing a trend that began long ago. "Those who are troubled by his comments would do well to address the problem as a whole rather than fixate on the Trump as the sole offender," he writes.

There is reason to believe, Emory Law Professor Jonathan Nash writes for The Hill, that Gorsuch's greatest impact (at least in the short-term) will be on the question of how much deference courts should afford agencies when they interpret federal statutes. "Signals from Gorsuch's court of appeals opinions indicate a desire by the judge to restore some measure of judicial supremacy over statutory interpretation," he adds.

While speculation swirls over the content of Donald Trump's presidential agenda, one task that President Trump will surely face once he takes office is to fill the Supreme Court seat that has remained open since Justice Antonin Scalia's death. Moreover, beyond the Supreme Court, Trump will appoint numerous lower federal court judges, Emory Law Professor Jonathan Nash writes for The Hill.

After two U.S. Supreme Court judges recused themselves from a case involving post-9/11 detentions, Politico quoted Emory Law Professor Jonathan Nash on the issue. If only six justices hear the case, it could make it easier for conservatives to prevail since four of the justices still on the case are Republican appointees, the story says. Only four justices are needed to grant certiorari in a case. "It may be the conservatives voted for cert because they may actually have a chance to win," Nash said.

"In August, in United States v. McIntosh, the United States Court of Appeals for the Ninth Circuit ruled that criminal defendants have standing to assert violation by the Department of Justice of a congressional appropriation rider as a basis for obtaining an injunction against the DOJ," Emory Law Professor Jonathan Nash writes for The Hill. "The ruling, grounded in the solid legal foundation of Supreme Court precedent, may provide a basis for Congress to allow private actors to challenge executive branch overreach."

Fineman, other Emory Law faculty recognized for scholarly impact

It's wrong for judges to enter the political fray, Professor Jonathan Nash writes for The Hill, and U.S. Supreme Court Justice Ruth Bader Ginsburg's disparaging remarks about presidential nominee Donald Trump were no exception. "It thus was entirely appropriate, and a most welcome development, for Justice Ginsburg to recognize the error of her ways and apologize," he writes.

Bright-line vs. balancing test: In the Merrill Lynch case, the Supreme Court had an opportunity to limit the state-law federal-question jurisdiction to the federal-question statute itself, Professor Jonathan Nash writes for The Hill. "Instead, it chose to extend it to a jurisdictional provision of the federal Securities Exchange Act that provides for exclusive federal court jurisdiction over any suit 'brought to enforce any liability or duty created by' the Securities Exchange Act or the regulations promulgated thereunder."

Writing for The Hill, Professor Jonathan Nash sees parallels between the historic Marbury v. Madison case and FBI Director James Comey's decision not to seek criminal charges against presidential candidate Hillary Clinton. "Comey left ultimate judgment to the political system and the ballot box, and preserved as best he could the integrity of the FBI as an independent actor within the Department of Justice and the executive branch," Nash writes.

The U.S. Supreme Court voted 4-4 on United States v. Texas, which would have shielded some immigrants from deportation. Professor Jonathan Nash suspects the court was sharply divided both on standing and merit. "We can reason that the court split on both states' standing to file suit (a procedural issue) and also on the merits (the substantive issues). The breadth of this divide highlights the importance the identity of the person who will join the court as its ninth justice, and presumably break ties like these."

Although there are now only eight U.S. Supreme Court justices following Antonin Scalia's death, a tie vote by the court may sometimes actually create more guidance on some issues, Emory Law Professor Jonathan Nash writes for The Hill. Franchise Tax Board v. Hyatt illustrates that, in regard to the Full Faith and Credit Clause, he says. "Scalia's absence resulted in the court providing guidance on the second issue--guidance that would probably never have come to light had Scalia been on the court," he writes.

The U.S. Supreme Court's unanimous summary reversal in the Idaho case might at first blush seem "of little interest and practical importance," says Emory Law Professor Jonathan Nash. But the case has ramifications elsewhere, including Alabama Chief Justice Roy Moore's recent administrative order to state probate courts to not issue marriage certificates to same-sex couples, despite the U.S. Supreme Court's decision in Obergefell v. Hodges.

How should a panel of judges cast their votes in a case that raises more than one legal issue? In a case handed down Nov. 12, 2012, Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., judges on the U.S. Court of Appeals for the Third Circuit relied on Emory Law Professor Jonathan Nash's work in "deciding how to decide."

"The Supreme Court has interpreted the Sixth Amendment to the Constitution to entitle criminal defendants to effective assistance of legal counsel," David J. Bederman Research Professor Jonathan Nash writes for The Hill, concerning Maryland v. Kulbicki. "A unanimous per curiam opinion, indicating that the justices thought the issues in the case were clear ... sheds light on what constitutes 'effective' assistance in light of evolving science and technology."

In Michigan v. EPA, the Supreme Court invalidated the Environmental Protection Agency's choice not to consider costs in determining whether to regulate hazardous air pollutants from power plants, writes Emory Law Professor Jonathan Nash, in an opinion article for The Hill. "Going forward, the case casts a shadow over the scope of agency deference under the so-called Chevron doctrine," Nash says. "The doctrine is a critical component of existing administrative law, requiring courts to defer to agencies' interpretations of ambiguous statutes."

"President Obama last week opined that the Supreme Court 'probably shouldn't even have ... taken up' King v. Burwell, the case that brings before the high court the question of whether the ObamaCare tax credit applies in states that have opted not to create their own healthcare exchanges," writes Professor Jonathan Nash. But the case meets the criteria for the court to have granted certiorari, and the administration's own arguments to the court belie the president's description of the case as "easy," he adds.

"In a case handed down last week--Wellness International Network, Ltd. v. Sharif--the Supreme Court upheld the power of bankruptcy judges to hear, with the consent of the parties, matters that fall within the ambit of Article III of the U.S. Constitution. Article III," Professor Jonathan Nash writes for The Hill. Bankruptcy judges are not Article III judges; they are appointed by federal circuit judges for 14-year terms, and their salaries are set by Congress, Nash says. "More disturbing than the court's lack of emphasis on Congress's other options is the failure of the court to come clean over exactly why Congress has not conferred Article III status on bankruptcy judges."

Although Williams-Yulee upholds a judicial campaign speech restriction, the restriction it upholds is a narrow one and, moreover, it adopts a most exacting standard against which it holds judicial speech restrictions are generally to be measured, Professor Jonathan Nash writes in an opinion article for The Hill. "Going forward, states will have to offer a compelling state interest in regulating judicial campaign speech, and more importantly will have to demonstrate that their regulation is narrowly tailored to the problem at issue."

Emory University School of Law authors played a significant role in the second edition of the International Encyclopedia of the Social and Behavioral Sciences, which was officially published by Elsevier on April 2.

"Two words in a Supreme Court opinion handed down last week seem arcane, but may have substantial repercussions for how Congress drafts statutes and how courts interpret them," Emory Law Professor Jonathan Nash writes for The Hill. In Armstrong v. Exceptional Child Center, Inc.,, Justice Antonin Scalia's majority opinion described the statutory provision --which instructs that states should "safeguard against unnecessary utilization of ... care and services" while also providing payments "consistent with efficiency, economy, and quality of care"--as "judicially unadministrable."

President Obama's announcement of a "historic agreement" between the U.S. and China to reduce greenhouse gas emissions on its face touches upon international law and domestic regulation. In point of fact, the agreement is not itself historic on either of these fronts. Still, what it might lead to down the line--a multilateral climate change treaty--makes the bilateral agreement a first step along a potentially historic path.

Emory Law has announced the establishment of the David J. Bederman Research Professorship and its first recipient, Jonathan Nash.

What leeway do police have when using deadly force to end dangerous high-speed chases? Left with little to reconcile the seemingly conflicting analyses in Scott v. Harris and Plumhoff v. Rickard, law enforcement officials may find themselves at the mercy of lower courts that may be influenced more by what they see in after-the-fact on video recordings than by what they read in clear Supreme Court precedents.

Last week, two federal courts of appeals issued opinions on ObamaCare. Common wisdom sees the opinion of the DC Circuit--which was issued first--as a potential death knell for ObamaCare. The Fourth Circuit opinion issued a few hours later was received as having reached a conclusion favorable to ObamaCare, thus dividing the courts of appeals. The Fourth Circuit's conclusion that the statute is ambiguous means that the Obama administration's regulations stand. But it also means that another administration--perhaps one with a Republican president--could issue new regulations that restricted the tax credit to states with state-created exchanges.

Members of the Emory Law faculty provide their analyses of the Supreme Court's 2014 term decisions.

In its proposed new regulations, the Environmental Protection Agency (EPA) estimates that many of the benefits of its mandate will arise not from the direct benefits of lower levels of carbon emissions, but from so-called health "co-benefits."

Cooperative federalism regimes offer two substantial benefits: They improve federal-state relations by empowering states to act under federal law, and they allow society to reap the benefit of state innovation instead of having one federal law preempt the field.