Harvard’s Mark Tushnet Wants Joe Biden to Become a Dictator
S E E D E D C O N T E N T
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.
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.
Tags
Who is online
439 visitors
This is the type of true American patriot we've put in charge of educating our elite lawyers. A man who hates the rule of law and 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"
Professor Eastman's law license is in danger and was referred for prosecution by the J6 Committee for advocating the President take unconstitutional actions.
I'm sure the same people so enraged by Eastman will push for the same penalties to apply this Harvard Professor. Because if there's one thing we know, the left is nothing if not consistent.
SCOTUS has shown itself to be corrupt. Not only have justices engaged in activities that are not allowed, they have refused to allow any ethics standards be applied to them.
Normal checks and balances are not working since the most corrupt of the justices (that we know of) are conservative/republican, so republicans in Congress will block any kind of action against that corruption.
Conservatives in the current SCOTUS have already shown their ability to completely ignore case law that has repeatedly been challenged and held up for decades for ideological reasons.
No, it hasn't. You can't provide a single instance where a justice's vote was bought. You know it. I know it. Everyone knows it. It's just a pretext to justify the sort of illegal assault on the Court this left wing totalitarian advocates.
Lol. Congress can't impose rules on the Supreme Court. Haven't you learned about the separation of powers?
onservatives in the current SCOTUS have already shown their ability to completely ignore case law
The Roberts court has overturned less precedent than any Post WWII Court. Again, you've been manipulated by people to believe things that aren't true.
A justice refusing to recuse him/herself for cases related to friends/families/boat buddies, is a form of corruption. Trading dollars for votes is not the only way to be corrupt.
oversight
[ oh-ver-sahyt ]
supervision; watchful care:
a person responsible for the oversight of the organization.
Congress has the power to regulate many aspects of the Supreme Court's structure and procedures .
Of the 21 cases where an identifiable precedent was overturned or altered during the Roberts court, most were divisive, 5-4 rulings, according to data from Washington University's Supreme Court Database. Most of the split rulings were about hot-button issues, and they were decided by a conservative majority.
Compared to past Supreme Courts, the Roberts court has a higher percentage of closely divided rulings, according to Washington University political science professor James Spriggs.
"About 71% of overulings are 5-4 under Roberts, compared to about 31% under Rehnquist," he said. "That's a function of a court that is deeply divided along clear ideological lines and on most salient issues with big political stakes."
BTW, it is good form to link where you take your word for word quotes from. In this case you took it from Reason.com .
The problem with the Supreme Court is that the constitution means whatever the current SC wants it to mean. There is no doubt whatsoever that on the most major issues the majority predetermines the ruling and then crafts an opinion that contains a constitutional framework that supports the predetermined decision.
There has been a generations long effort to create a right wing court, the evidence is overwhelming. No one can tell me that a right wing court is objective. There is no objectivity, there is the manipulation of words.
Legislating from the bench is a leftist trait. "Living breathing Constitution" ring any bells?
As for a "generations long effort to create a right wing court". Which party is for packing the Supreme Court again to make sure it rules their way? Democrats are not objective. They believe in one party rule; and judges following leftist dogma.
Mr. Tushnet needs to go back to high school US History and then re-enroll in law school so he can finally learn that the US Constitution does not allow the Executive Branch to interpret law.
One would think a "Professor of Law Emeritus" would know better.
Another populist with an opinion... I've heard this same idea brought fourth by both the left and the right wings. It can't work and is little more than shouting into the (internet) void. The progressives were on better legal footing when threating to increase the number of seats.