Harvard’s Mark Tushnet Wants Joe Biden to Become a Dictator

By Charles C. W. Cooke

Thursday, July 20, 2023

 

Mark Tushnet, the William Nelson Cromwell Professor of Law Emeritus at Harvard Law School, a former president of the Association of American Law Schools, and the author of many of the books that America’s law students use while in college, has joined forces with a political-science professor from San Francisco State University to write an open letter to President Biden urging him to begin openly ignoring the Supreme Court:

 

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.

 

I contended recently that the Left has no comprehensible judicial philosophy. This is a good example of that problem. There is no principle on display here, and there is no use pretending otherwise. By “mistaken interpretations,” Tushnet means decisions that he personally dislikes. By “fundamental commitment,” he means political outcomes that he personally desires. By “MAGA justices,” he means members of the Supreme Court whom he personally wishes had not been nominated and confirmed. He 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.

 

As Tushnet goes on to confirm:

 

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.

 

This is a friendlier way of saying that Tushnet would like to turn the president into an Emperor — at least for any periods in which that president hails from the Democratic Party. If Tushnet were arguing for the abolition of the Supreme Court, that would be one thing. But he’s not. He’s asserting that this particular executive branch ought to ignore the judiciary when it sees fit, while that same judiciary retains its powers in other circumstances. This isn’t analysis or scholarship or reform; it’s thuggery.

 

Tushnet’s approach to the Court is entirely circumstantial. At Harvard, he confirmed that if he were put onto the bench, he would use his power to “decide what decision in a case was most likely to advance the cause of socialism.” Back in 2016, when he believed that Hillary Clinton was going to win the election, he wrote a post arguing that “for liberals, the question now is how to deal with the losers in the culture wars”; submitting that “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”; and concluding that, once his favored judges formed a majority on the Court, “a rather large body of doctrine will have to be built from the ground up.” Recently, he has “worked diligently over the past five years to advocate Supreme Court expansion.” Now, having failed to receive a nomination, to secure the Hillary Court for which he longed, or to achieve his “packing” scheme, he writes that the Court should be ignored when the president feels like it. Is there anyone in America who doubts that he will reverse himself the very moment the next Republican wins the presidency?

 

Some observers have noticed that Tushnet’s approach makes little sense on its own terms. In the space of a few paragraphs, he writes both that “courts do not exercise exclusive authority over constitutional meaning” and that he and his friends “continue to support expansion.” But why, some have asked, would one need to expand the Court if, indeed, “a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation”? Let me stop them right there. It is futile to try to answer this question, because there is nothing concrete to interrogate. Tushnet is doing what everyone of his political persuasion does with the Supreme Court: he is saying whatever he needs to at any given moment to maximize the likelihood that he will end up getting his way, and then reversing himself completely when the winds change. He’s a disgrace, and that he will fail as badly in this endeavor as he did the last time around is a terrific thing for the republic indeed.