Two left-wing law professors have written an open letter imploring President Joe Biden to ignore Supreme Court rulings that they disagree with as anger percolates with Democrats and their allies over recent decisions by the conservative majority.
In their screed titled “An Open Letter to the Biden Administration on Popular Constitutionalism,” Harvard Law Professor Mark Tushnet and Aaron Belkin, a political scientist at San Francisco University write that Biden should disregard certain rulings by “MAGA justices” for what they describe as “gravely mistaken interpretations” of the United States Constitution.
“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,” they wrote.
“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 letter reads.
Stung by last month’s rulings on religious freedom, affirmative action, and his student loan debt scheme, Biden was extremely critical of the last remaining institution not controlled by his party, saying that the SCOTUS is “not a normal” court amount other things.
REPORTER: “Is this a rogue court?”
BIDEN: “This is not a normal court.” pic.twitter.com/6ps8rbarAs
— RNC Research (@RNCResearch) June 29, 2023
The ivory tower-dwelling duo cloaked their extremism in moderation, saying that they don’t mean that he should ignore ALL rulings by the court’s conservative majority, only certain ones.
“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,” they wrote.
The professors cite a radical theory known as “popular constitutionalism” to argue “that courts do not exercise exclusive authority over constitutional meaning” and state that “In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation.”
“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,” the professors wrote in their open letter, urging Biden to act like a dictator as if he needed any more encouragement.
Constitutional law expert Professor Jonathan Turley of George Washington University blasted Tushnet and Belkin in a column for The Hill.
These professors are calling for Biden to declare himself the final arbiter of what the Constitution means and to exercise unilateral executive power without congressional approval. He is to become a government unto himself. https://t.co/gqvdZ42iXB
— Jonathan Turley (@JonathanTurley) July 22, 2023
“In other words, they are calling for Biden to declare himself the final arbiter of what the Constitution means and to exercise unilateral executive power without congressional approval. He is to become a government unto himself,” Turley said. “You are not incorrect if you noticed that their description of ‘popular constitutionalism’ sounds exactly like dictatorship.”
“So a few MAGA justices ruled in non-insane ways in a few cases that never should have been before the Court in the 1st place, then turned around and destroyed affirmative action. MAGA JUSTICES ARE DANGEROUS, DESTROYING DEMOCRACY & OUR RIGHTS TO HELP PLUTOCRATS & CORPORATIONS,” Belkin raged on Twitter after the recent Supreme Court term wrapped up with a series of major blows to the left’s cultural dominance.
So a few MAGA justices ruled in non-insane ways in a few cases that never should have been before the Court in the 1st place, then turned around and destroyed affirmative action. MAGA JUSTICES ARE DANGEROUS, DESTROYING DEMOCRACY & OUR RIGHTS TO HELP PLUTOCRATS & CORPORATIONS
— Aaron Belkin (@AaronBelkin) June 29, 2023
Tushnet wasn’t as vocal on Twitter as his cohort but has previously suggested that cultural conservatives should be treated like Nazi Germany and Imperial Japan during World War II.
“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.),” he wrote in a May 2016 blog post titled “Abandoning Defensive Crouch Liberal Constitutionalism.”
“The President has the power to clip MAGA justices’ wings now. To protect democracy and the rule of law, President Biden must prevent them from exercising exclusive authority over constitutional meaning. We urge the President to exercise leadership in this regard before it is too late,” the professors wrote.
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