Conservative intellectual William F. Buckley famously said he’d rather society be run by the first 2,000 people in the phone book than by the Harvard faculty. When you see the ideas coming out of elite academia today, it’s difficult to disagree with Buckley’s assessment.
The latest example of academic radicalism infecting our political discourse comes courtesy of a Harvard Law professor who is essentially calling on President Biden to start a constitutional crisis. The professor, Mark Tushnet, just published an open letter alongside University of San Francisco political scientist Aaron Belkin that is breathtakingly radical in its implications.
“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,” the letter reads. “In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation.”
(Translation: They think the president should ignore Supreme Court rulings he dislikes and do whatever he wants.)
“The President has the power to clip MAGA justices’ wings now,” the professors conclude. “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.”
To see these professors cite “the rule of law” as one reason in favor of their suggestion is almost beyond belief. The course they advocate would destroy the rule of law in this court and eliminate our system of checks and balances.
The entire point of the Supreme Court is to serve as a check on the other branches of government. It is the arbiter that forces the president and Congress to stay within the bounds of the Constitution. Without it, we are left to what, hope that they police themselves and simply choose to abide by their constitutional limits? That’s like putting your dog’s food out for the entire week at once and then hoping he’ll restrain himself rather than eat it all at once.
These radical professors are clearly motivated by their frustration with the Supreme Court’s recent decisions on Affirmative Action, student loans, and anti-discrimination law. But they need to realize that they’re advocating a course that would have ramifications far beyond a few short-term losses to their partisan agenda.
If President Biden can ignore the Supreme Court and follow his own subjective interpretation of the Constitution, then so can any Republican president. Liberals and progressives otherwise enticed by this proposal should reach back into their distant memories and recall that just a few years ago, Donald Trump was president. And the Supreme Court at that time repeatedly rebuffed his policies when they superseded his Constitutional authority.
As law professor Ilya Somin wrote for the Volokh Conspiracy, “If you think Trump and other Republicans pose a grave danger to liberal democracy, you should be wary of dismantling one of the major institutions standing in their way. Imagine, for example, if Trump had been able to successfully resist judicial rulings against his efforts to overturn the 2020 election.”
Do “progressives” really want a system where future executive tyrants aren’t checked by the courts? Because you can’t have it just cut one way.
This proposal is more openly extreme than the ideas that are currently more mainstream among Democrats, like “expanding”—aka packing—the high court. But the end result is the same: eventually eliminating the courts as a check on the other branches. That’s not something any American, on the Left or Right, who values the rule of law should ever support.