In 2016, Harvard Law professor Mark Tushnet urged liberal judges and justices to abandon “defensive-crouch liberalism” and remake legal precedent in their image. Two years later, he told Vox it’s time to “abolish” the Supreme Court by reversing the idea of judicial review — giving the Supreme Court a say on whether or not laws are constitutional.
“Do you think we’d be better off if we abolished the Supreme Court in its current manifestation?” Vox’s Sean Illing asked. Tushnet responded, “Yeah, I do. I’m a big fan of the dialogic approach.”
Tushnet suggested that America should do away with judicial review, in order to empower the people more than the Supreme Court.
“As a matter of basic democratic principle, the people ought to be able to consider policies and then vote on them without having the courts step in and say ‘no,'” the professor declared. “So from a democratic point of view, it’s hard to justify allowing the courts to single-handedly overrule popular will whenever they choose.”
Tushnet also argued that judicial review would prevent the American people from debating constitutional issues on their own. “Judicial review may actually impair the public’s ability to engage in serious thinking about what the Constitution means. … In a way, the Supreme Court simply takes on this conversation for itself, and leaves the citizenry as bystanders.”
Discussing the rejection of judicial review, Tushnet insisted, “I’ve felt this way for my entire career, regardless of the ideological makeup of the Supreme Court.”
The Harvard law professor even suggested that Supreme Court justices should be subject to 18-year term limits. “I think there is some enthusiasm among Democrats about alternative constitutional designs, but they can’t do anything about it now. But if they win in 2018 or 2020 or beyond, who knows?”
Despite Tushnet’s insistence that he has always “felt this way,” in 2016 he argued something entirely different. In an article published in May 2016, the Harvard Law professor argued that liberals should abandon “defensive-crouch constitutionalism.”
Among other things, the professor argued that liberals should embrace the idea that “The culture wars are over; they lost, we won.” He boldly compared the conservative “losers” to the defeated Axis powers from World War II.
“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,” he argued. “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.)”
Tushnet suggested that “liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. … What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up.”
Tushnet proved surprisingly forthcoming about why liberals should engage in this kind of judicial activism. “Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions,” he wrote.
The Harvard Law professor concluded with this rather telling line: “Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.”
Now, since Donald Trump became president, Mark Tushnet has rejected the idea that activist judges should create new judicial “doctrine.” Instead, he wants the Supreme Court weakened — nay, “abolished” — forced to adhere to the will of the people as expressed through Congress.
Even in his 2018 article, the Harvard Law professor did not seem quite consistent. He referenced Roe v. Wade and Obergefell v. Hodges as victories for the little people, despite the fact that both of those decisions involved striking down laws duly passed and enacted by individual states. Roe struck down abortion laws across the country, and Obergefell reversed many popular referenda defining marriage as between one man and one woman.
Neither of these decisions would have been possible without judicial review, the principle Tushnet called for reversing — because the Supreme Court has become majority conservative.
Mark Tushnet’s partisan reversal is extremely revealing. Like Alexandria Ocasio-Cortez, this Harvard Law professor is willing to fundamentally alter American institutions if his side is losing.
Then again, that seems like a logical deduction from his general judicial philosophy. “I should start by saying I’m not a textualist or an originalist, which is to say I don’t think the meaning of the Constitution is stable or fixed from the time it was enacted,” Tushnet explained in his 2018 article.
If a legal scholar — a Harvard Law professor! — rejects the idea that the Constitution has a fixed meaning, he is undercutting the very ground on which the American legal system is based. Sadly, this is a common view on the Left and in academia.
The Left stands for redefining the basic terms of American government, reinterpreting the Constitution to include their ideas. Former president Barack Obama redefined “sex” to refer to “gender identity,” to alter longstanding law to favor transgender people. Now, liberals are pushing for the abolition of the U.S. Senate and the Supreme Court.
Follow the author of this article on Twitter at @Tyler2ONeil.