Progressive academics urge Biden to ignore Supreme Court

Two prominent professors have written an open letter to President Joe Biden, urging him and his administration to ignore recent Supreme Court decisions and instead opt to carry out their own constitutional interpretations.

The July 19 open letter was authored by Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin, who said their theory of “proper constitutionalism” could clip the wings of what they called the MAGA court.

The letter drew immediate condemnation and pushback from leading conservatives and constitutional scholars, including Georgetown University professor Jonathan Turley. While Tushnet and Belkin say voters could boot a president in the next election if they didn’t agree with a decision to ignore the court, critics said the idea of a “temporary dictator” was especially dangerous.

The progressive professors kicked off their letter bluntly.

“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,” Tushnet and Belkin wrote.

The two professors said they had worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. However, the court has become so extreme, they argued, that the country cannot wait for such expansion.

“The central tenet of the solution that we recommend — Popular Constitutionalism — is that courts do not exercise exclusive authority over constitutional meaning,” they wrote. “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, the professors argued, votes can kick them out of office.

“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,” they wrote.

That doesn’t mean the president should simply ignore every MAGA ruling, Tushnet and Belkin stressed.

“The president should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question,” they explained.

Such actions could help contain the grave threat posed by MAGA justices, the professors wrote.

“For example, President Biden could declare that the court’s recent decision in the affirmative action cases applies only to selective institutions of higher education and that the administration will continue to pursue affirmative action in every other context vigorously because it believes that the court‘s interpretation of the constitution is egregiously wrong,” they wrote.

Each time the president takes such a step, Tushnet and Belkin emphasized, he should explain how and why the MAGA ruling poses serious threats to fundamental commitments, should identify the mistaken constitutional interpretations that sustain the ruling, and should underscore that popular constitutionalism has a proud history in the United States.

“As [Harvard law school professor] Nikolas Bowie has demonstrated, treating the Supreme Court as the sole source of constitutional interpretations is antithetical to American democracy, as the Supreme Court has spent most of its history wielding ‘an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status,’” they wrote. “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.”

Notably, the professors asserted, other healthy and robust democracies do not allow courts to play an exclusive role in constitutional interpretation but promote dialogues among the branches in which legislatures or chief executives respond to judicial interpretations by offering their own competing interpretations.

Popular constitutionalism is not a silver bullet against MAGA justices, Tushnet and Belkin continued.

“Its success requires support from members of Congress and the public generally,” they wrote. “Nor is popular constitutionalism in the form of presidential action risk-free, as future GOP administrations would cite it as precedent for ignoring federal courts. Notably, though, Republican presidents might well ignore federal courts regardless of what President Biden does.”

The GOP’s failure to hold President Trump accountable for inciting a violent coup is perhaps the clearest of many indications that party leaders and followers are no longer committed to democracy or the rule of law, the professors argued. 

“It is not hard to imagine that a President Trump or DeSantis would circumvent or ignore rulings issued by a liberal Supreme Court,” they wrote.

In light of Dobbs as well as ongoing revelations of judicial corruption, a solid majority of the public understands the danger posed by unchecked MAGA justices, Tushnet and Belkin continued. 

“Americans are more open than ever to the argument that MAGA justices serve plutocrats and corporations, that what they pretend to pass off as law is often just partisan and ideological nonsense, and that our system of checks and balances depends on other branches to rein them in,” they wrote.

The bottom line was, the professors concluded, the president has the power to clip MAGA justices’ wings now. 

“To protect democracy and the rule of law, President Biden must prevent them from exercising exclusive authority over constitutional meaning,” they wrote. “We urge the President to exercise leadership in this regard before it is too late.”

Turley responds

Conservatives and constitutional scholars responded immediately, among them Jonathan Turley, the Shapiro Professor of Public Interest Law for George Washington University. 

Turley pointed out that Tushnet’s and Belkin’s thinking falls in line with a statement made by Alabama Gov. George Wallace 60 years ago, that he “shall resist any illegal federal order.”

“In one of the most chilling developments in our history, the left has come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court,” Turley wrote.

The professors’ use of the Supreme Court’s recent affirmative action decision as a reason for Biden to continue to follow his own constitutional interpretation is ironic, Turley wrote, because polls have consistently shown that the majority of the public does not support the use of race in college admissions. 

“Indeed, even in the most liberal states, such as California, voters have repeatedly rejected affirmative action in college admissions,” he wrote. “Polls further show that a majority support the Supreme Court’s recent decisions.”

What that means is, Turley asserts, despite referenda and polls showing majority support for barring race in admissions, the academics are pushing to impose their own values, regardless of the views of the public or of the courts.

“However, even if these measures were popular, it would not make them right,” he wrote. “It is precisely what segregationists such as Sen. James Eastland (D-Miss.) argued, that ‘all the people of the South are in favor of segregation. And Supreme Court or no Supreme Court, we are going to maintain segregated schools.’”

Tushnet and Belkin cite with approval Biden’s declaration that this is “not a normal Supreme Court,” Turley pointed out.

“Biden’s view of normalcy appears to be a court that agrees with his fluid view of constitutional law, by which he can forgive roughly a half of trillion dollars in loans or impose a national eviction moratorium without a vote of Congress,” he wrote.

But Tushnet and Belkin know their audience, Turley acknowledges. 

“Biden has previously evinced little respect for the constitution or the courts,” he wrote. “Take the eviction case. In an earlier decision, a majority of justices had declared that Biden’s actions were unconstitutional, confirming what many of us had said for months.”

In addition to Biden, Turley wrote, other commentators and academics have gone from implied to open contempt for constitutional norms, citing Georgetown University Law School professor Rosa Brooks’s declaration that Americans are “slaves” to the U.S. Constitution and that the constitution itself is a problem.

“Rep. Alexandria Ocasio-Cortez (D-N.Y.) has questioned the need for a Supreme Court,” Turley wrote. “In a New York Times column, ‘The Constitution Is Broken and Should Not Be Reclaimed,’ law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the constitution to be ‘radically altered’ to ‘reclaim America from constitutionalism.’”

So the danger is now “constitutionalism,” as opposed to what Tushnet and Belkin call “popular constitutionalism,” Turley wrote.

However, far from devising popular constitutionalism, Turley wrote, the Framers saw the Supreme Court as playing a counter-majoritarian role when it is necessary to protect individual rights and constitutional norms. 

“The alternative is what the Framers viewed as a tyranny of the majority, where popularity rather than principle prevails,” he wrote. “For that reason, the court has often stood with the least popular in our society and, since Marbury v. Madison, has had the final word on what the constitution means.”

That finality has been essential to the nation’s stability for generations, Turley wrote. 

“While presidents such as Andrew Jackson taunted the court for its inability to enforce its rulings without an army, it has never needed one,” he wrote. “Respect for the court is in our DNA. No matter our disagreements with a given decision, Americans will not tolerate defiance of the institution and the rule of law.”

But what was most striking about the professors is how they continue to claim they are defenders of democracy, yet seek to use unilateral executive authority to defy the courts and, in cases like tuition forgiveness and affirmative action, the majority of the public, Turley contended. 

“They remain the privileged elite of academia, declaring their values as transcending both constitutional and democratic processes,” he wrote. “The problem is indeed ‘constitutionalism,’ and their view of ‘popular constitutionalism’ is a euphemism for ‘popular justice.’”

The professors are suggesting that Biden take complete power and become a government unto himself, Turley wrote. 

Writing in the conservative Daily Signal, GianCarlo Canaparo, a senior legal fellow at The Heritage Foundation, cited Tushnet’s and Belkin’s counter argument to that last point — namely, that voters could get rid of “a temporary dictator” in the next election — by giving examples of what could happen in between ignoring a court decision and the next election.

“Consider President Andrew Jackson, who modeled Tushnet’s strategy when he ignored a Supreme Court decision holding that Georgia unlawfully imprisoned people in violation of a treaty with several Indian tribes,” Canaparo wrote. “The court ordered the state to release its prisoners, but Jackson refused to enforce the order. He then forced the tribes to accept a new treaty requiring them to leave Georgia in a march that would come to be known as the Trail of Tears.”

Was Jackson right to do so? Canaparo asked.

“Tushnet has no problem in principle with Jackson ignoring the Supreme Court order,” he wrote. “He could say only that he opposes Jackson’s decision as a matter of personal opinion. And if the people opposed Jackson’s decision, they could vote him out. Except the 10,000 to 20,000 Indians who died, of course.”

Writing in Reason, Ilya Somin, a professor of law at George Mason University who voted for Biden in 2020, said undermining judicial review is a standard tactic of incipient illiberal authoritarians, who Shapiro says seek to concentrate power in the executive. 

“American progressives readily see this when it comes to countries like Russia, Turkey, Hungary, and — most recently — Israel,” Shapiro wrote. “The point applies here at home, too. If you think Trump and other Republicans pose a grave danger to liberal democracy, you should be wary of dismantling one of the major institutions standing in their way. Imagine, for example, if Trump had been able to successfully resist judicial rulings against his efforts to overturn the 2020 election.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.