Wednesday, July 19, 2023

An Open Letter to the Biden Administration on Popular Constitutionalism

Mark Tushnet

Aaron Belkin and I have written the following open letter to the Biden administration urging that it endorse and take steps to implement popular constitutionalism as a response to what the President has described as "not a normal" Supreme Court. We urge readers to let the administration know in their own ways that reinvigorating the long and honored tradition of popular constitutionalism is both viable and urgently needed in today's circumstances.

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.


We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, 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.


The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.


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.


Such actions could help contain the grave threat posed by MAGA justices. For example, President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.


Each time the President takes such a step, he should explain how and why the MAGA ruling poses serious threats to our fundamental commitments, should identify the mistaken constitutional interpretations that sustain the ruling, and should underscore that Popular Constitutionalism has a proud history in the United States.


As Nikolas Bowie has demonstrated, treating the Supreme Court as the sole source of constitutional interpretations is antithetical to American democracy, as the Supreme Court has spent most of its history wielding “an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.” In this particular historical moment, MAGA justices pose a grave threat to our most fundamental commitments because they rule consistently to undermine democracy and to curtail fundamental rights, and because many of their rulings are based on misleading and untrue claims. Notably, other healthy and robust democracies do not allow courts to play an exclusive role in constitutional interpretation but promote dialogues among the branches in which legislatures or chief executives respond to judicial interpretations by offering their own competing interpretations.


Popular Constitutionalism is not a silver bullet against MAGA justices. Its success requires support from members of Congress and the public generally. Nor is Popular Constitutionalism in the form of presidential action risk-free, as future GOP administrations would cite it as precedent for ignoring federal courts. Notably, though, Republican presidents might well ignore federal courts regardless of what President Biden does. The GOP’s failure to hold President Trump accountable for inciting a violent coup is perhaps the clearest of many indications that party leaders and followers are no longer committed to democracy or the rule of law. It is not hard to imagine that a President Trump or DeSantis would circumvent or ignore rulings issued by a liberal Supreme Court.


In light of Dobbs as well as ongoing revelations of judicial corruption, a solid majority of the public understands the danger posed by unchecked MAGA justices. Americans are more open than ever to the argument that MAGA justices serve plutocrats and corporations, that what they pretend to pass off as law is often just partisan and ideological nonsense, and that our system of checks and balances depends on other branches to rein them in.


The President has the power to clip MAGA justices’ wings now. 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.


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