The Left Isn’t Even Pretending to Work within the American System of Government Anymore

By Jeffrey Blehar

Thursday, July 20, 2023

 

Friends, allow me to introduce you to a legal scholar you might otherwise be unfamiliar with named Mark Tushnet, professor emeritus of law at Harvard University. Tushnet is notable as one of the leading lights of the critical legal studies movement (CLS), most known for spawning the sub-field of critical race theory. (So don’t worry — it’s just an obscure academic theory, not the sort of thing that insinuated its way into your child’s educational formation over a decade ago while you weren’t paying attention.) Like a bad penny or a Babadook haunting legal conservatives, he just keeps turning up at the most fittingly ominous moments, telegraphing what will next be coming down the pike from the Left.

 

If you’re familiar with critical race theory — one assumes that readers of National Review have encountered the term at least a few times — then you already understand the basic intellectual approach underpinning CLS: namely, that laws are imposed by society’s economic and racial winners to encode their privilege (the now-ubiquitous term “white privilege” emerged from this academic milieu) and are thus owed zero judicial deference if they are deemed to “uphold oppression” by the sorts of intellectuals and activists who call the tune of the times.

 

Tushnet is thus also notable as the man who galvanized the conservative legal community (otherwise extremely dubious about Donald Trump as nominee) in 2016 like few others in recent memory, by publishing a single piece on Yale Law professor Jack Balkin’s blog Balkinization called “Abandoning Defensive Crouch Liberal Constitutionalism.” It remains almost unique in the legal world as a viscerally salivating manifesto of anticipated legal retribution: the plans they had for us if Hillary had won and Scalia, Ginsburg, and Kennedy had been replaced by progressive jurists instead.

 

I won’t reprint the entire thing, just Tushnet’s six salient bullet points and the selected details which boiled conservative blood across the land:

 

1          A jurisprudence of “wrong the day it was decided.” Liberals 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. [. . .] What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up.

 

2          The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars. [. . .] For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)

 

3          Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.

 

4          Related: Remember that doctrine is a way to empower our allies and weaken theirs.

 

5          Our models are Justices William Brennan and Thurgood Marshall, not David Souter or John Marshall Harlan.

 

6          Finally (trigger/crudeness alert), f*** Anthony Kennedy.

 

It is difficult to overstate the shockwaves that this piece sent through the conservative legal landscape. I remember one colleague here sending it to me back then and saying, “Stuff like this may just end up getting Trump elected.” I laughed at that at the time. He laughed last. While it certainly isn’t what swung Wisconsin and Michigan into the Republican column in 2016, it absolutely 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.

 

So you’ll be pleased to know that Mark Tushnet is back just in time for 2024 and raising eyebrows again with his most recent piece with Aaron Belkin, “An Open Letter to the Biden Administration on Popular Constitutionalism.” No prizes for guessing what “Popular Constitutionalism” means: It is a euphemism for arguing that Joe Biden should just ignore the Supreme Court altogether when it issues a ruling opposed to Democratic policy priorities. No, really, I’m not kidding. That’s the argument in whole:

 

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 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.

 

Read that again! They’re not even trying to disguise the Left’s hunger for raw power anymore. He calls Gorsuch, Kavanaugh, and Barrett “MAGA justices” and dismisses the Court’s opinions as “MAGA rulings” without even bothering to gesture to an argument as to why their status on the Court is somehow lesser than anyone else’s — it is meant to be understood that “associated with Trump” equals “illegitimate.” This does not even attempt to convincingly impersonate the language of legal argumentation; it is the vulgar branding-focused language of political partisanship. It’s hard to even find substance to kick against in the manifesto, because though it dresses its argument up in the language of legality, it is an explicitly lawless argument: A Democratic president can do what he wants if he feels it’s right, and if there’s a problem, well . . . there will be an election in four years or whatever, the people can “vote” about it then. This isn’t even plebiscitary democracy (which is barely a democracy at all), it’s just a pitch for blunt Caesarism.

 

To give you a further sense of how laughably threadbare the argumentative effort here is, note Tushnet & Belkin’s risible response to the idea that Republicans might someday use this power themselves: “Popular Constitutionalism in the form of presidential action [is not] risk-free, as future GOP administrations would cite it as precedent for ignoring federal courts. Notably, though, Republican presidents might well ignore federal courts regardless of what President Biden does.” Notably, huh? It’s notable that it occurred to them Republicans might do something (even though they haven’t), and that provides justification for beating them to the punch?

 

Tushnet’s indifference to even the most blatantly obvious counterarguments is appalling; apparently “Lincoln didn’t like the Dred Scott decision” is sufficient reasoning to justify Joe Biden’s ignoring the Supreme Court whenever it issues an inconvenient ruling — one which curiously omits the Civil War America fought to overturn Scott v. Sanford. And because Tushnet is an intellectual coward contemptuously playing a cynical political game, he fails to mention the one howlingly obvious example in American history where “Popular Constitutionalism” was genuinely put into practice: Andrew Jackson telling the Supreme Court to pound sand as he carted the Cherokee Nation off onto the Trail of Tears. A fine moment in Popular Constitutionalist history, indeed. (Tushnet would console the Indians with the point that they can “register to vote in the next election.”) In other ways, however, maybe this is heartening proof that “wokeness” is receding: After all, we’ve come a long way from renaming Democratic “Jefferson–Jackson” fundraising dinners out of disgust for Jackson’s treatment of Native Americans a decade ago to bringing back “John Marshall has made his decision; now let him enforce it” as a key progressive legal doctrine.

 

I should let this go, but I cannot. The incoherence in this piece is so staggering, so transparently governed by its authors’ political desires, that the one time it even tries to get specific it actively contradicts itself:

 

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.

 

Did you catch that? The one example of a recent case Tushnet and Belkin think Joe Biden should executively overrule or ignore in the name of “Popular Constitutionalism” just so happens to be the case that is extremely popular with the American public. It is, however, not popular among retired socialist Harvard law professors. When regarding the cruel comedy of calling for the president to plunge the nation into its worst crisis since 1861 in order to serve unpopular and illegal elite progressive social priorities in contravention of law an act of “popular constitutionalism,” one can only be reminded of Voltaire’s joke about the Holy Roman Empire.

 

But of course Tushnet knows this. He is intelligent, is pedigreed, and taught law for years; he surely understands (and evidently enjoys) the pleasures of cynical imposture in politics. He is in fact open about this in other venues; he once famously said that if he were a judge, he would decide every legal ruling on the basis of whether it would “advance the cause of socialism.” That, of course, was not mentioned in this piece, and that’s the depressing point: There is no need for his argument to hang together rationally, other than as a gauzy psychological salve for a certain type of intellectual trying to patiently mainstream the idea of naked overthrow of the American constitutional order to achieve “social justice.”

 

And it is the wave of the future for progressive legal argumentation, in an era where originalism has intellectually destroyed the idea of an unmoored “living Constitution” and the Supreme Court is dominated by originalism’s adherents. Tushnet’s intellectual journey is wonderfully illustrative of that point; how, as critical legal studies has grown in influence within the academy, it has rapidly decayed into an impulse that no longer expresses itself in ideas, but only in actions or irritable mental gestures which seek to resemble ideas. He first came to attention back in the mid aughts for a 2004 piece he wrote on the desirability of what he called “constitutional hardball,” i.e. the act of using political pressure and power grabs to fundamentally alter the American political settlement outside the four corners of the Constitution. For those who registered wariness at the idea, Tushnet granted in his conclusion that “in its most general form, the solution is for political-constitutional actors to behave like grown-ups”: 

 

Consider, for example, the sheer distastefulness of constitutional hardball. That problem could be eliminated after constitutional transformation occurs—after, that is, we emerge from the tunnel into the new constitutional order. Then, the politicians having control of the government can revert to ordinary constitutional politics, and their opponents can, like Eisenhower and Nixon in 1960, play the game on winners’ terms, hoping to pick up a victory or two themselves. If our normative misgivings are founded in simple distaste for constitutional hardball . . . we can take some solace in the possibility that someday the Republicans might win.

 

In other words: Suck it up and enjoy sustenance-level table scraps after we cram the revolution down your throats, America. This is the voice of blandly arrogant authoritarianism wrapped in academic garb. It is notable how specifically he addresses the Republican Party — no effort whatsoever is made to deny that he speaks, as a law professor, from an explicitly partisan Democratic perspective. And when the worm did turn against Republicans, when it looked like Trump was set to lead them to electoral disaster in 2016, there Mark Tushnet was proudly preparing to get the Left out of its “defensive crouch,” overturn every federal precedent standing in the way of the progressive-socialist project, and shoot the survivors of the culture wars on sight. It didn’t turn out that way. In 2023, there is amusingly somehow even less pretense — no attempted legal fig-leaf — suggesting that Tushnet failed to take his own earlier advice about finding solace in the possibility that someday Republicans might win.

 

Why does any of this matter? Viewed one way, Tushnet’s recent piece plausibly reads as the pathetic bleat of a man who has been completely broken intellectually on the wheel of events, all his beautiful dreams torn away from him by the cruel vicissitudes of badly timed elections and retirements. We should mock him and not worry about him, right?

 

Wrong. He is merely an academic voice saying the quiet part out loud about what I have contended for months is the activist Left’s real aim with regard to the federal judiciary. They recognize that, under the rules of a game they previously dominated, they have lost control of the Court and cannot push federal policy in unconstitutional directions simply by winning elections in the foreseeable future. The overarching goal therefore is to discredit the moral force of the Supreme Court, as a prelude to either expanding it — or doing something even more radical. This is a song we’ll be hearing more of in the future, in the Left’s drive to rewrite America’s structure of government by political demagoguery.