A prominent Harvard University professor has signed an open letter encouraging President Biden to ignore Supreme Court decisions the White House opposes as a “necessary strategy” for restoring democracy.
Mark Tushnet, an emeritus professor of law at Harvard, and Aaron Belkin, a professor of political science at San Francisco State University, penned the open letter on July 19, saying Biden “has the power” to ignore decisions he opposes.
“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 write.
“We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy,” they write. “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.”
It’s not the first time Tushnet has made the argument. His 2020 book Taking Back the Constitution: Activist Judges and the Next Age of American Law explained, in detail, his legal theory. Tushnet calls it “popular constitutionalism.” It’s a legal theory he has held for decades.
“In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation,” the professors write. “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.”
Tushnet and Belkin reference the Supreme Court’s rulings on affirmative action and abortion.
“The President has the power to clip MAGA justices’ wings now,” they write. “To protect democracy and the rule of law, President Biden must prevent them from exercising exclusive authority over constitutional meaning. We urge the President to exercise leadership in this regard before it is too late.”
National Review’s Charles C.W. Cooke argued that the professors’ theory lacks coherence.
“This is a friendlier way of saying that Tushnet would like to turn the president into an Emperor – at least for any periods in which that president hails from the Democratic Party,” Cooke wrote.
“If Tushnet were arguing for the abolition of the Supreme Court, that would be one thing. But he’s not. He’s asserting that this particular executive branch ought to ignore the judiciary when it sees fit, while that same judiciary retains its powers in other circumstances. This isn’t analysis or scholarship or reform; it’s thuggery.”
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.