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Harvard Law Professor Tells Joe Biden To Ignore Rogue Supreme Court

Sure, we need a solution... but this may not be it.

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Earlier this month, Harvard Law professor Mark Tushnet, along with San Francisco State University political scientist Aaron Belkin, penned an open letter to President Joe Biden advancing their idea of popular constitutionalism. They posit this will combat the hard right turn the federal judiciary has taken.

They write:

In this particular historical moment, MAGA justices pose a grave threat to our most fundamental commitments because they rule consistently to undermine democracy and to curtail fundamental rights, and because many of their rulings are based on misleading and untrue claims.

In response they argue the president should be able to offer his own constitutional interpretation when he doesn’t like what the courts have come up with.

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

This will be able to curb far-right jurists and is not mutually exclusive with other Court reforms such as expansion.

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We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.

We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, the threat that MAGA justices pose is so extreme that reforms that do not require Congressional approval are needed at this time, and advocates and experts should encourage President Biden to take immediate action to limit the damage.

But as viscerally satisfactory it’d feel to throw a middle finger up to the Supreme Court with a move straight outta Bartleby, the Scrivener, long term this is a disaster. If successful, this would spell the end of the Court’s authority and tyranny of the majority would rule the day.

Listen, I’ll freely admit the system is broken. But this is less fixing it than smashing it into unusable pieces. Which… I understand, given Tushnet’s scholarship. But there are ways to fix the problem (or at least ameliorate the worst of the issues) which feels like a better response.

Even though I’m no fan of chucking the rule of law out the window, the far right’s fauxrage is galling. Let’s not forget that despite conservatives’ (ill-gotten) 6-3 majority on the Supreme Court, it’s still all the rage in consecutive circles to ignore court orders when they run counter to their political aims. So when the Free Beacon (or similar) spends more breath decrying what is ultimately an academic thought experiment than the real usurping of Court authority that Alabama is engaged in, well, it’s pretty telling.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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