Tyranny of the minority: Liberal law profs urge Biden to defy the courts and the public

“I shall resist any illegal federal court order.”

When “the Court’s interpretation of the Constitution is egregiously wrong,” the president should refuse to follow it.

Those two statements were made roughly 60 years apart. The first is from segregationist Alabama Gov. George Wallace (D). The second was made by two liberal professors this month.

In one of the most chilling developments in our history, the left has come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court. 

In a recent open letter, 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.” Thus, in light of the court’s bar on the use of race in college admissions, they argue that Biden should just continue to follow his own constitutional interpretation.

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.

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. 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.

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.

Even after the majority declared it unconstitutional, Biden wanted to reissue the national moratorium. White House counsel and most scholars told him the move would be blatantly unconstitutional and defy the express ruling of the court. Instead, he consulted the only law professor willing to tell him what he wanted to hear and did it anyway. It was quickly again declared unconstitutional.

Other commentators and academics have gone from implied to open contempt for our constitutional norms. 

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.”

So the danger is now “constitutionalism,” as opposed to what Tushnet and Belkin call “popular constitutionalism.”

Many 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.”

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.

Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.” 

That finality has been essential to the stability of our system for generations. While presidents such as Andrew Jackson taunted the court for its inability to enforce its rulings without an army, it has never needed one. Respect for the court is in our DNA. No matter our disagreements with a given decision, Americans will not tolerate defiance of the institution and the rule of law. That is why, despite the support for court packing by many law professors (including Tushnet, Belkin and Bowie), the public remains staunchly opposed to it.

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.

The problem is indeed “constitutionalism,” and their view of “popular constitutionalism” is a euphemism for “popular justice.”

Tushnet and Belkin show the release that comes with rejecting constitutionalism. They declare that it is not enough merely to pack the court: “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.”

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.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University.