Two radical left “scholars” have crawled from underneath the rocks where they were hiding and are now openly advocating the end of “judicial review.” That’s the theory that the Supreme Court has the last word on constitutional issues and that all must obey their decisions—including, and especially, presidents.
The doctrine dates back to the 1803 Marbury v. Madison decision, where Chief Justice John Marshall decided the ultimate question of power: is an act of Congress or the Constitution the supreme law of the land?
But now, Harvard law Prof. Mark Tushnet and political scientist Aaron Belkin are advocating for something they’re calling “Popular Constitutionalism” to give Joe Biden the dubious authority to ignore or disobey Supreme Court decisions.
Professor Tushnet suggested in “An Open Letter to the Biden Administration on Popular Constitutionalism” that sometimes a radical-left nincompoop has to do what a radical-left nincompoop has to do.
“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.”
If you think about this for more than two seconds, you’ll realize the incredible power Tushnet and Belkin want to place in the hands of the chief executive. Executive power plus the ability to interpret the Constitution as he/she sees fit? If the radical left could only dream of having such power.
Related: Supreme Court Stymies the Left’s Radical Agenda — and the American People Love It
Popular Constitutionalism would make the Supreme Court just another federal court. And premier constitutional scholar Ilya Somin points out some serious flaws in the concept.
In any event, the flaws in Tushnet and Belkin’s argument go far beyond their take on this particular ruling. The course of action they advocate would effectively destroy judicial review. While they urge Biden to disobey Supreme Court decisions only when it comes to “high-stakes rulings that are based on gravely mistaken constitutional interpretations,” political partisans will predictably make such claims about every decision they strongly disapprove of. And if one president successfully gets away with defying court decisions, he and his successors are likely to use this tactic whenever they think it politically advantageous to do so. The net effect will be the gutting of judicial review, at least on issues important to the party in power.
Even if you trust Biden to scrupulously differentiate “high-stakes” cases from ordinary ones, and “grave” errors from normal mistakes, I suspect you do not have similar confidence in Donald Trump, or whoever the next GOP president might be.
Another flaw in Tushnet’s theory is that it would give a president the power to overrule any decision — not just “extreme” decisions.
The Tushnet-Belkin theory, therefore, is not confined to distinctively MAGA rulings. It implies that presidents should be able to ignore a wide range of right-of-center judicial decisions, including those rooted in longstanding mainstream constitutional theories. And, obviously, presidents with a right-wing ideological orientation can use similar reasoning to justify defying even the most mainstream left-wing judicial decisions.
As NRO’s Jeffrey Blehar points out, Tushnet is a leader of the “critical legal studies” movement (CLS). If that movement sounds suspiciously familiar, you would be correct. CLS birthed the “critical race theory,” which is now firmly entrenched in American schools, despite efforts to dislodge it.
The Harvard professor proved in 2016 to have radical Stalinist tendencies. What he wanted to do with Hillary Clinton’s “enemies” could hardly be considered anything else, as he explained in an article he wrote that appeared on the blog Balkanization after Hillary Clinton’s unexpected loss:
The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars. [. . .] For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)
For those who don’t think there’s a choice in 2024, these are the kinds of people who have Joe Biden’s ear. We can’t say we weren’t warned.
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