Harvard Law School professor Mark Tushnet published an open letter alongside San Francisco State University professor Aaron Belkin urging President Joe Biden (D) to “restrain MAGA justices” by allowing the administration to be “guided by its own constitutional interpretations.”
Throughout the letter, the professors repeatedly referred to the recently-appointed Supreme Court justices as “MAGA justices,” implying a belief that there is a politically motivated connection between the justices and former President Donald Trump.
“Although we continue to support expansion [of the Supreme Court], the threat that MAGA justices pose is so extreme that reforms that do not require Congressional approval are needed at this time,” Tushnet and Belkin wrote.
There is no provision in the U.S. Constitution that allows a president to usurp the authority of the Supreme Court when American law professors believe the Court is “extreme.”
In their open letter, Tushnet and Belkin advocate for a school of thought known as “Popular Constitutionalism,” which they define as a legal theory in which “courts
do not exercise exclusive authority over constitutional meaning.”
To further illustrate what Popular Constitutionalism would look like in reality, they said:
Tushnet and Belkin then cite President Lincoln’s “refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers” as evidence of Popular Constitutionalism’s “proud history in the United States.”
Although they wrote that they “do not believe that President Biden should simply ignore every MAGA ruling,” they argued that “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,” Tushnet and Belkin stated.
As an example, Tushnet and Belkin specifically pointed to the Supreme Court’s recent decision concerning affirmative action, arguing that the President ought to declare their ban on affirmative action to apply “only to selective institutions of higher education” and that his 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.”
Although Tushnet and Belkin use affirmative action as an exemplar application of Popular Constitutionalism, it is important to note that according to a recent ABC News/Ipsos poll, the majority of Americans (52%) support the Supreme Court’s ruling, while only 32% were opposed. The remaining 16% indicated that they were “unsure” of their opinion on the decision.
According to Tushnet and Belkin:
They then point to other unnamed “healthy and robust democracies,” arguing that they “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.”
“Popular Constitutionalism is not a silver bullet against MAGA justices,” Tushnet and Belkin said.
They also suggested that pursuing Popular Constitutionalism is not “risk-free,” as “future GOP administrations would cite it as precedent for ignoring federal courts.” They also note, without providing any supporting evidence beyond conjecture, that “Republican presidents might well ignore federal courts regardless of what President Biden does.”
“It is not hard to imagine that a President Trump or DeSantis would circumvent or ignore rulings issued by a liberal Supreme Court,” they said.
Tushnet and Belkin then claim that “in light of Dobbs as well as ongoing revelations of judicial corruption, a solid majority of the public understands the danger posed by unchecked MAGA justices.”
“Americans are more open than ever to the argument that MAGA justices serve plutocrats and corporations, that what they pretend to pass off as law is often just partisan and ideological nonsense, and that our system of checks and balances depends on other branches to rein them in,” they argued.
“The President has the power to clip MAGA justices’ wings now,” Tushnet and Belkin stated.
Left-wing attacks on the judiciary have escalated in severity since the Dobbs ruling, with protesters even targeting conservative Supreme Justices at their homes.
On June 8, 2022, a man traveled to the from California to the east coast home of Justice Brett Kavanaugh with a plan to assassinate Kavanaugh before committing suicide.
Read the Full Open Letter