Opinion: Liberals As Wrong As Segregationists, Arguing President Can Defy SCOTUS

AP Photo/ Susan Walsh

By The Vanguard 

WASHINGTON, D.C. – In a recent open letter, The Hill reports Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin “called upon President Joe Biden to defy rulings of the Supreme Court that he considers ‘mistaken’ in the name of ‘popular constitutionalism.’

The Hill contributor Jonathan Turley, the Shapiro Professor of Law for Georgetown University, suggested “the left has come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court.”

The professors argue that Biden should just continue to follow his own constitutional interpretation, said The Hill, much as segregationist Alabama Gov. George Wallace when he said he’d “resist an illegal federal court order.”

“The use of the affirmative action case is ironic, since polls have consistently shown that the majority of the public does not support the use of race in college admissions. Indeed, even in the most liberal states, such as California, voters have repeatedly rejected affirmative action in college admissions. Polls further show that a majority support the Supreme Court’s recent decisions,” cited The Hill. 

“So despite referenda and polls showing majority support for barring race in admissions, academics are pushing to impose their own values, regardless of the views of the public or of the courts. However, even if these measures were popular, it would not make them right,” said The Hill’s Turley.

He added, “It is precisely what segregationists such as Sen. James Eastland (D-Miss.) argued, that ‘all the people of the South are in favor of segregation. And Supreme Court or no Supreme Court, we are going to maintain segregated schools.’”

Tushnet and Belkin cite with approval Biden’s declaration that this is “not a normal Supreme Court.” Biden’s view of normalcy appears to be a court that agrees with his fluid view of constitutional law, by which he can forgive roughly a half of trillion dollars in loans or impose a national eviction moratorium without a vote of Congress, said Turley.

“Tushnet and Belkin know their audience. Biden has previously evinced little respect for the Constitution or the courts. Take the eviction case. In an earlier decision, a majority of justices had declared that Biden’s actions were unconstitutional, confirming what many of us had said for months,” Turley wrote in The Hill.

Turley noted “Other commentators and academics have gone from implied to open contempt for our constitutional norms,” citing Georgetown University Law School Professor Rosa Brooks was celebrated for her appearance on MSNBC’s “The ReidOut” after declaring that Americans are “slaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country.

“MSNBC commentator Elie Mystal called the U.S. Constitution “trash” and argued that we should simply just dump it…Rep. Alexandria Ocasio-Cortez (D-N.Y.) has questioned the need for a Supreme Court…In a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism,” Turley said.

“Many,” said The Hill’s Turley, “have called for the court to be packed with liberal appointees to bring it back to what Biden views as ‘normal.’ Some of these calls before Biden’s Supreme Court commission echoed the same views as Tushnet and Belkin. Indeed, they cite Harvard professor Nikolas Bowie, who rejected the notion that ‘the constitutional interpretation held by a majority of Supreme Court justices should be ‘superior’ to the interpretations held by majorities of the other branches.’”

But in his opinion piece in The Hill, Turley adds, “The Framers saw the Supreme Court as playing a counter-majoritarian role when it is necessary to protect individual rights and constitutional norms. The alternative is what the Framers viewed as a tyranny of the majority, where popularity rather than principle prevails. For that reason, the Court has often stood with the least popular in our society and, since Marbury v. Madison, has had the final word on what the Constitution means.”

“What is most striking about these professors is how they continue to claim they are defenders of democracy, yet seek to use unilateral executive authority to defy the courts and, in cases like the tuition forgiveness and affirmative action, the majority of the public. They remain the privileged elite of academia, declaring their values as transcending both constitutional and democratic processes,” added Turley. 

The Hill contributor added, “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. 

“You are not incorrect if you noticed that their description of “popular constitutionalism” sounds exactly like dictatorship. This is what Tushnet has advocated in ‘taking the Constitution away from the courts.’ Once the courts are removed from constitutionalism, however, we will be left where we began centuries ago: with the fleeting satisfaction of popular justice.” 

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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