The same leftists who love to throw around words like “dictator” to describe President Trump are actively encouraging President Biden to act like one.
A couple of leftist academics, Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin wrote an open letter to Biden, calling on him to defy Supreme Court rulings that he considers “mistaken,” in the name of “popular Constitutionalism.” Specifically, they’re talking about the Court’s recent ruling against race-based college admissions. Just ignore it, they essentially tell Biden, and follow your own interpretation of the Constitution.
Ironic note: if they want to argue “popular Constitutionalism,” perhaps they should look at recent polls that show race-based college admissions are not popular, even in California, where a majority support the Supreme Court and disapprove of affirmative action in schools. No, it’s these academics’ OWN values they want to impose when they talk about ignoring checks and balances, not the popular will.
Other Presidents through history have grappled with this kind of idea. (Abraham Lincoln actually did it when he suspended habeas corpus, but he was fighting the Civil War.) And Trump has certainly made statements meant to discredit the judiciary, though he did not go as far as to directly defy Court decisions. But these academics are actually trying to LEGITIMIZE doing just that --- as long as only their side does it.
Jonathan Turley wrote a great column about this over the weekend, pointing out that in order to justify this behavior from the White House, leftists have “come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court.”
Indeed, as Turley points out, it was Democrat segregationist Alabama Gov. George Wallace, about 60 years ago, who in speaking about the order to desegregate schools said, “I shall resist any illegal federal court order.”
Even if something WERE the popular will --- as school segregation mostly was in the South 60-plus years ago --- that wouldn’t make it right for an executive to violate a Supreme Court ruling. And when it’s the U.S. President involved, the “states’ rights” argument doesn’t even factor in.
These two academics say something eerily similar to Gov. Wallace’s pronouncement: that when “the Court’s interpretation of the Constitution is egregiously wrong,” the President should refuse to go along with it. They rationalize their view by saying (I kid you not), this is “not a normal Supreme Court.” What?? I guess by “normal,” they mean one that agrees with them.
They say “MAGA justices,” who pose a “grave threat,” need to be “restrained.”
To that end, they support “expansion” of the Court, adding that “in the meantime, the threat that MAGA justices pose is so extreme that reforms that do not require Constitutional approval are needed at this time, and advocates and experts should encourage President Biden to take immediate action to limit the damage.”
And they go further to enlist Congress and the public: “Popular Constitutionalism is not a silver bullet against MAGA justices. Its success requires support from members of Congress and the public generally.” Ironically, one risk they cite is the precedent this will set for REPUBLICANS to ignore the Court down the road. In other words, it’s great --- even necessary --- for the left to do this, but not for others.
“In light of Dobbs as well as ongoing revelations of judicial corruption,” they say, “a solid majority of the public understands the danger posed by unchecked MAGA justices,” because “what they pretend to pass off as law is often just partisan and ideological nonsense...”
“The President has the power to clip MAGA justices’ wings right now,” they actually wrote in a sentence. This is tyranny disguised as protection from tyranny.
Here’s their letter…
Here’s Jonathan Turley’s column for THE HILL...
And here’s a must-read commentary from Jim Thompson at REDSTATE. It cites an example from 1820 in which President Andrew “Trail Of Tears” Jackson (the racist founder of the Democratic Party) acted in effect as a proxy king when he ignored a Supreme Court ruling about Cherokee rights that he and the governor of Georgia disagreed with. Thompson rightly goes on to say that we’re in the midst of a constitutional crisis, “one caused by a cabal of palace partisans who want to abandon the Constitution, but only when it suits them.”