The Volokh Conspiracy
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A Flawed "Popular Constitutionalist" Rationale for Disobeying Supreme Court Decisions
Harvard law Prof. Mark Tushnet and political scientist Aaron Belkin urge President Biden to disobey "gravely mistaken" Supreme Court rulings. Doing so would set a dangerous precedent likely to be abused by the right, as well as the left.
In an open letter to the Biden Administration, Harvard law professor Mark Tushnet and University of San Francisco political scientist Aaron Belkin urge President Biden to disobey "high-stakes" "MAGA" Supreme Court rulings he considers to be seriously wrong:
We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. 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.
The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court's interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President's interpretation, they can express their views at the ballot box.
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….
We do not believe that President Biden should simply ignore every MAGA ruling. The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration's constitutional interpretations would substantially mitigate the damage posed by the ruling in question.
Such actions could help contain the grave threat posed by MAGA justices. For example, President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong….
As Nikolas Bowie has demonstrated, treating the Supreme Court as the sole source of constitutional interpretations is antithetical to American democracy, as the Supreme Court has spent most of its history wielding "an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status." In this particular historical moment, MAGA justices pose a grave threat to our most fundamental commitments because they rule consistently to undermine democracy and to curtail fundamental rights, and because many of their rulings are based on misleading and untrue claims.
Much of the commentary on the Tushnet-Belkin letter focuses on the passage urging Biden to (in most contexts) ignore the Supreme Court's recent ruling against the use of racial preferences. Critics point out that the affirmative action decision is actually highly popular, with 52% of Americans supporting it and only 32% opposed. Other surveys find even broader opposition to affirmative action.
Traditionally, popular constitutionalist theory holds that social movements that win broad public support should be empowered to influence and control constitutional interpretation. Longstanding widespread public opposition to racial preferences fits that bill. If Biden were to take Tushnet and Belkin's advice on this particular point, he would actually be promoting an unpopular position held by some political elites at the expense of that supported by a large majority of the public.
I should emphasize that I myself am not a popular constitutionalist. Thus, I do not claim that the popularity of the Court's ruling against affirmative action proves the decision was correct. But consistent popular constitutionalists should welcome this particular result. It's a case where the Court enabled a large popular majority to prevail over the entrenched resistance of elites.
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.
Tushnet and Belkin acknowledge that their proposal is not "risk-free," because "future GOP administrations would cite it as precedent for ignoring federal courts." But they then minimize this danger because "Republican presidents might well ignore federal courts regardless of what President Biden does," citing the GOP's "failure to hold President Trump accountable for inciting a violent coup."
It is certainly true that Trump - and possibly other future GOP presidents - might use these types of tactics. But they are far more likely to get away with it if Biden sets a precedent for how it can be done. It's worth noting that Trump ultimately failed in his efforts to circumvent court decisions holding that he lost the 2020 election. That's in part because of the continuing strength of the norm against such defiance. If a Democratic president successfully undermines that norm, Trump (or another right-wing authoritarian) can follow the same playbook.
Standard slippery-slope concerns about court-packing apply here, as well. Indeed, executive defiance of court rulings is an even slipperier slope than court-packing because it can be undertaken by the president alone, without the need for new legislation enacted by both houses of Congress. That makes it an even more attractive tool for a would-be strongman.
Undermining judicial review is a standard tactic of incipient illiberal authoritarians, who seek to concentrate power in the executive. American progressives readily see this when it comes to countries like Russia, Turkey, Hungary, and - most recently - Israel. The point applies here at home, too. If you think Trump and other Republicans pose a grave danger to liberal democracy, you should be wary of dismantling one of the major institutions standing in their way. Imagine, for example, if Trump had been able to successfully resist judicial rulings against his efforts to overturn the 2020 election.
Tushnet and Belkin's references to "MAGA justices" are presumably meant to associate the Supreme Court with Donald Trump's illiberal and anti-democratic tendencies. The MAGA turn has indeed shifted the GOP on major issues, such as immigration, trade, government spending, and others. These changes are among the reasons why I voted for Hillary Clinton in 2016 and Biden in 2020, despite many reservations about the Democratic Party. And Trump has attacked basic liberal democratic norms far more than any other modern president.
But there is little, if any, distinctive "MAGA" or Trumpist element to the recent Supreme Court rulings that most incense progressives. Abortion, affirmative action, gun rights, the powers of administrative agencies, and conflicts between free speech and antidiscrimination law have been points of contention between left and right for many years.
When more distinctively MAGA claims have come before the Supreme Supreme Court, the justices (and conservative lower court judges) have largely rejected them. For example, the Court recently decisively repudiated the "independent state legislature" theory, which Trumpists advanced as a tool to enable Republican state legislatures to reverse election results they oppose. Conservative judges, including at the Supreme Court, have mostly been skeptical of new state laws trying to force social media providers to platform right-wing speakers they would prefer to exclude. The Supreme Court has twice turned back red states efforts to force Biden to crack down on immigration. In 2018, all five conservative justices then on the Court backed a key federalism decision whose predictable (and predicted) main effect has been to protect immigration sanctuary jurisdictions. Perhaps most important, conservative judges on both lower courts and the Supreme Court rejected Trump's efforts to overturn the result of the 2020 election.
The conservative justices did vote to uphold Trump's anti-Muslim travel ban, a terrible ruling I have severely criticized. But even that decision was not simply a radical Trumpist departure from previous doctrine. It built on longstanding, though badly flawed, precedents applying lower scrutiny to immigration restrictions than other exercises of government power that might violate constitutional rights.
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.
Finally, it's worth noting that many left-wing objections to recent Supreme Court decisions - most notably when it comes to abortion and the travel ban case - are about situations where the Court refused to enforce rights against the political branches. If the institution of judicial review is preserved, these rulings could well be overturned or at least narrowed by future, more liberal, courts. But if that institution is destroyed, then these rights - and every other right - will be forever left to the mercy of the political process, including any right-wing populists who might occupy the White House and other positions of power in the future. They will be more than happy to cite "popular constitutionalism" as a justification for whatever they do.
If you believe destroying judicial review is a feature rather than a bug, then the Tushnet-Belkin proposal is as good a way to do it as any (assuming the president who implements it gets away with it). Tushnet himself is a longtime advocate of "taking the Constitution away from the courts," and deserves credit for consistency. But we should not be under any illusion that the course of action he and Belkin recommend can be just a limited response to a subset of particularly egregious Supreme Court decisions.
