Harvard Law Prof Who Wanted to Unleash a Liberal Supreme Court Now Wants to 'Abolish' the Court
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.)"