Before the 2020 elections and the death of Ruth Bader Ginsburg, leftist (there is a line between "left" and "liberal" and I think it fits here), the law professor (and Thurgood Marshall's clerk during the decision of Roe v. Wade) wrote Taking Back the Constitution: Activist Judges and The Next Age of American Law.
I wrote a book summary on another website. The book partially is about how there is a conservative-leaning Supreme Court, which was a change from past courts that leaned in their own directions. The book summarizes its views on various subjects. Again, this was before Amy Coney Barrett so it noted that the conservative movement only went so far. But, it left open the possibility that it could go further. Uh-huh.
This is standard progressive stuff that is useful to remember and keep track of. The truly interesting aspects of the book are his discussions about how we (as progressives, liberals, or whatever) can respond. A basic way is to win elections, appoint judges, and pass liberal-leaning policies.
Mark Tushnet is a believer in "hardball," which means pushing back at times by not following well-accepted norms. A "hardball" tactic was to leave a Supreme Court seat open for over a year. Tushnet believes that "our side" should do that more often. The Democrats (or their leaders and representatives) being more moderate clearly aggravates him. I'm sure Sen. Durbin, chair of the Judiciary Committee, still supporting blue slips (a single Republican can block district judges) gets his teeth on edge.
Tushnet also promotes "popular constitutionalism." This is not just something that is "popular" per se. He means the people themselves, as compared to the courts, should have significant power to "make" the law. This is already true (see, e.g., David Cole's Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law) in the development of the law. Let me quote myself:
He promotes “popular constitutionalism,” which gives the people themselves through political institutions a broad power to set forth constitutional law. Broad-based popular support, especially for extended periods of time, would have general legitimacy unless the Constitution clearly bars something. This includes “super-statutes” such as Medicaid or Social Security.
What happens when the people clearly clash with the courts? This has happened and we think of the bad cases more often, most likely. For instance, after Brown v. Board of Education, the South found various ways to nullify the opinion for some time. But, that isn't the only way to go. For instance, Dred Scott v. Sandford was often not applied in full force, and after the beginning of the Civil War, it was basically ignored.
Mark Tushnet argues that if the people on a local level determine something is the law and it is left in place, it basically has realistically become the law. Again, this is often how the law develops, which I personally think of as a sort of "common law" constitutionalism (especially when the courts recognize the results). And, this is a way to respond to conservative courts, including the Supreme Court.
What is tossed around here is "judicial supremacy," a term that I find misleading. The courts have some role and few doubt in some spheres their decisions are final. At the very least, for the litigants of a specific case.
The concern is when judicial review is used to settle questions and the results become precedent. If the courts get to decide too much, they are "supreme." Should not others have more power, with the added value of it being more democratic?
For instance, President Obama didn't defend DOMA (specifically the third section) since he felt it was unconstitutional under current law. If the people didn't like that, they could pick a new president. Unfortunately, they did (we can debate if this was a clear statement of the public will, including given the popular vote), but there is some general point where the "people have spoken." So "popular" here has a nuanced quality that means a bit more than something is "popular" as such. It means "people."
I find it impractical to think that the courts do not have a special role in our system. The concept of "departmentalism" where each branch of government (and on some level, that goes down to local governments) get its own separate say to me can be taken to absurd levels. We cannot simply start from scratch each time. I find this guy's views bothersome (and this isn't the first time). There realistically and on principle leads to be limits.
There is a back-and-forth that is part of the separation of powers and checks and balances. Each branch of government is not just a separate branch with its own limited role. The lines are unclear and develop over time. There is no magical clarity. There are shades of gray.
Okay. So is there a reason I am talking about this? Yes. Prof. Tushnet co-wrote an open letter to President Biden promoting popular constitutionalism.
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.
Contra some simplistic replies found on Twitter and such, he is not saying whenever Biden "doesn't like" a ruling or thinks it is "not popular" (in the commonly used sense) that he should "ignore it." The quotes are summaries of simplistic analysis.
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.
The use of "MAGA justices" is not an invitation for calm reaction to those inclined not to support their views. It is to be noted too that they also support court expansion, which underlines Mark Tushnet is not merely a median "liberal" voice. I don't like it, but court expansion is something many Democrats are loathe to support.
The letter notes that popular constitutionalism ultimately requires the support of Congress and the public though I would note executives still have broad discretion of their own. Okay. Again, the letter doesn't say whenever Biden doesn't "like" something that he should ignore the court's judgment. It surely is not saying specific judgments, the cases themselves, should just be ignored. There is also already a lot of play in the joints.
The critic will sneer at such qualifiers and say it boils down to "like" but that is not what they said. There is precedent here. Back to Obama and DOMA. There was precedent for the executive to not defend something that is egregiously wrong (Alito should like that). What does that mean? Well, it is a judgment call. That is the reality of the situation.
And, we are talking high stakes. Again, we can debate what that means, but a common sense view is that lots of cases do not apply. Many wrongminded rulings can be dealt with, at times with some difficulty. Some of these approaches are of varying levels of convincing. Again, this is already a thing. Mark Tushnet is just being somewhat more blunt about it.
The letter doesn't really provide much in ways of examples other than citing the affirmative action cases. This is a prime case. First, the ruling said they weren't deciding the case of military institutions. Then, they said they weren't overruling previous affirmative action rulings, though the dissent and Justice Thomas basically assumed they were.
The specific ruling is relatively narrow, at least in some form, so a blatant "ignore" is unclear in some fashion. I think the core issue here is a suggestion of approach and sentiment. A sort of "work to the rule" approach that when push comes to shove stretches the court's judgment past where it reasonably should go. If necessary.
Notably, other healthy and robust democracies do not allow courts to play an exclusive role in constitutional interpretation but promote dialogues among the branches in which legislatures or chief executives respond to judicial interpretations by offering their own competing interpretations.
And, neither do we, particularly in actual form. Did Roe v. Wade lead all government officials to not push back? No way. They kept on pushing back, eventually watering down the reach of Roe. And, we shall see what happens with Dobbs, which is worse than Dred Scott in my view in some respects, including how the justices themselves got there and decided the case. But, that is another whole can of worms.
So, I am not sure exactly the breadth of the open letter's message. There are some who provide a simplistic view of judicial review and the role of the courts to "say what the law is." That is surely its role to some special degree. But, how do they do it? What is the reach of their rulings?
James Madison in his second bank veto statement (he opposed the specific bank) said that the constitutionality of a national bank specifically was a decided question by then:
Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation, the proposed bank does not appear to be calculated to answer the purposes of reviving the public credit, of providing a national medium of circulation, and of aiding the Treasury by facilitating the indispensable anticipations of the revenue and by affording to the public more durable loans.
This was before McCulloch v. Maryland itself was decided. He did not think merely "judicial branches" decided the question. I am no originalist but I am fine with being added by the lessons learned by the "Father of the Constitution" that stand the test of time.
The courts decide a range of questions, including setting disputes on the meanings of federal statutes. There are basic constitutional questions that they decide as well. These tend to be more complicated, at least in many cases. Our society has generally not accepted that the courts should just have the "supreme" power to decide such questions.
When the courts push back too strongly against the popular will, there is repeatedly strong pushback. Checks and balances warrant this as does the rule that "because I say so" alone should be left to parents and little kids. There is no foolproof plan here. There is a principle that you should not follow an unjust order. Sounds nice though we leave it to underlining to second guess their superiors. So, there are strong limits in place.
The open letter has its own limits, starting with the fact that some law professor who is seen as too "lefty" even by one or more members of that blog probably at times say something only has so much force. Freedom is a matter of control over oneself. That is part of democracy. Democracy also gives power to different groups beyond the courts on these questions.
We should very well think about that.
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Thanks for your .02!