Having been away on vacation, I am a few days late in ridiculing Harvard law professor Mark Tushnet’s “Open Letter to the Biden Administration on Popular Constitutionalism,” which he co-scribbled with political scientist Aaron Belkin. Tushnet and Belkin “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.”
Elsewhere on NRO, Jeffrey Blehar and Charlie Cooke have already written devastating critiques of the “open letter,” so I’ll try to keep this post short.
If the name Mark Tushnet rings a bell with any readers, that’s probably because he was the author of the notorious blog post in 2016 that encouraged the Left to abandon what Tushnet somehow imagined to have been an era of “defensive-crouch liberalism.” Salivating over the imminent prospect of a liberal majority on the Supreme Court, Tushnet offered these modest and genial recommendations:
- The Left “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” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”
- Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”
- “Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet didn’t use asterisks.)
Tushnet couldn’t have given a bigger assist to Donald Trump. As Blehar puts it, Tushnet’s post sent “shockwaves … through the conservative legal landscape” and “played a major role in getting Federalist Society types fully engaged with the administration to ensure sane judicial conservative nominees once Trump shocked the world that November.”
Tushnet’s “open letter” demonstrates the same level of unintellectual contempt and political folly. A few observations:
1. I will highlight that, as a critic of what I have labeled the myth of judicial supremacy, I am strongly in agreement with Tushnet on the theoretical point that a president is not constitutionally obligated to accept Supreme Court rulings as final and authoritative determinations of what the Constitution means. As I have argued, the myth of judicial supremacy is flatly contrary to the principle of constitutional supremacy that is the source of the power of judicial review—the power, that is, of courts to review the constitutionality of laws that they are asked to apply. Under a sound departmentalism, the president and Congress should pay due respect to the Court’s constitutional rulings but have their own authority to adhere to their carefully considered interpretations of the Constitution.
Tushnet’s alternative of “Popular Constitutionalism” is very different from a responsible departmentalism. As Cooke points out, Tushnet, a purported scholar of constitutional law, offers “no comprehensible judicial philosophy” as to what the Constitution means”:
He [Tushnet] provides no rubrics, frameworks, standards, canons, doctrines, or objective arguments of any sort in the course of his proposition. Why not? Because he doesn’t have any.
If I’m understanding the “popular” in “popular constitutionalism” (and perhaps I’m not), Tushnet evidently believes that the people can legitimately alter the meaning of the Constitution by “express[ing] their views at the ballot box” in support of a president who has offered an “alternative interpretation” of the Constitution.
2. Tushnet combines his radical vision and stupid epithets (he uses the term “MAGA justices” nine times) with a weird timidity. In his prime example of what Biden should do, he proposes that Biden declare that the Court’s ruling on racial preferences “applies only to selective institutions of higher education.” But if a president is going to be bold, why not declare that the ruling applies only to Harvard and UNC? Or that he won’t even enforce the ruling against them?
3. Tushnet is amazingly obtuse to the reality that federal law reinforces the Court’s significant institutional advantages in advancing its readings of the Constitution. In particular, any president who would want to defy a Court ruling has to confront the fact that the entire federal judiciary is available to enforce that ruling, usually with sizable awards of attorney’s fees available to the winning parties.
So it would be one thing for Biden to declare that his Administration “will continue to pursue affirmative action in every other context vigorously.” It would be quite another to avoid lots of costly defeats in the lower courts.
4. On much more trivial matters: Note Tushnet’s awkward placement of the adverb vigorously in the quotation in the preceding paragraph. I find it amusing that the radical law professor woodenly applies the ill-conceived precept against splitting infinitives.
I also wonder what the metaphysical distinction is between an “open letter” and an ordinary blog post. And if Tushnet is going to write an “open letter” to “the Biden administration,” why doesn’t he in fact address it to President Biden and other administration officials (i.e., by using second-person rather than third-person pronouns)?