King Biden and the Grand Vizier from Harvard

In my last post, I argued that we’ve developed a two-tiered justice system, in which ordinary people have to take their losses in court and adjust their behavior accordingly, but Our Masters on the Left can just blow by their losses and, with utter impunity, keep right on keepin’ on. I noted two examples: President Biden’s determination to continue his gigantic loan “forgiveness” program still without the Congressional approval the Supreme Court held is constitutionally required; and his and his allies’ continued, if not even more aggressive, determination to persist with anti-white racial balancing by hiding it or calling it something else (or some other subterfuge I haven’t thought of but they will).

It appears that I underestimated how far the Left wants to go and is urging Biden to go. Enter Prof. Mark Tushnet of Harvard (one of the two losing universities in the racial balancing cases). Harvard, please remember, has one of the top law schools in the country, and Prof. Tushnet is one of its most prominent teachers. His piece on Balkanization starts this way:

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.

Translation: You used to think that the judicial branch generally, and the Supreme Court in particular, had the last say on what the law is, and the executive branch was bound by that interpretation, but that is old fashioned thinking.

(Well, old fashioned unless we’re talking about the courts that tossed out Donald Trump’s election law suits — courts whose rulings were so definitive that Trump’s continuing dissent was not merely wrong but, eventually, insurrectionist).

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.

Translation: If Joe Biden can’t get Court packing through Congress, the most democratically responsive branch of government — which Franklin Roosevelt couldn’t — fine, we’ll just end run Congress. This will be done in the name of, yes, democracy.

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning.

Translation: Joe, you can do what you want regardless of the Supreme Court if you just call it by some fancy opaque name we at Harvard will invent for you. Something like “Popular Constitutionalism.”

In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation.

Then why bother to show up in court at all? If you’re going to do what you want regardless of how the court may rule, showing up to argue the case is a charade.

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.

Joe Biden can do this because Joe Biden is just like Abraham Lincoln. And holding that Congress should have a say on whether to spend a half trillion of taxpayer money on loan bailouts is just like Dred Scott.

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.

Translation: Joe, if you really, really need to shovel out this loan forgiveness money to buy off the youth vote in next year’s election — which is looking quite close right now — go ahead. We in academia and the MSM will have your back by assuring the public that the Court has adopted “gravely mistaken constitutional interpretations.” With the dumbed-down educational standards we’ve been shoving into high schools for the last 50 or 60 years, there’s a good chance they’ll believe it.

Same deal with continued racial balancing in college admissions. We shouldn’t have that much trouble convincing people that “equal protection of the law” actually means “sending whites and Asians to the back of the line.” We’ve been doing it since at least the Seventies.

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.

OK, I give up. This is impossible to parody. Could anyone produce a clearer statement of the Left’s belief that there is no such thing as positive law and no such thing as an independent judiciary; there is only “these-are-my-preferences-and-so-this-is-what-we’re-going-to-do-period.” And isn’t that precisely the behavior — the willfulness and aggressive disregard for law — for which the Left wants to give Trump about a hundred years in the slammer?

I’ve only gone through about the first half of Prof. Tushnet’s letter. I might return to it after what, all things considered, should be a very refreshing lunchtime review of the Court’s recently concluded Term given by the superb Paul Clement.

Yes, this is a Harvard Law School professor advocating that Biden NOT listen to the rulings of SCOTUS. These Leftists absolutely believe that they should have the power to do whatever they desire. They are the ultimate authoritarians.

They keep saying Jan 6th was an insurrection...
but where was the “Autonomous Zone’ ???

Where were the broken and forced doors?

Where were the former regime members hanging from lamp posts?

“in which ordinary people have to take their losses in court and adjust their behavior accordingly”

Well, yes, in court they may have to “take their losses”. But what the perfesser might be missing is that in the real world, when a 2-tier justice system emerges, real people don’t necessarily take that lying down like meek little sheep.

If they are already living under a heavy-handed totalitarian dictatorship, then their options for seeking redress outside the courts may be very limited. But we’re not quite at that point yet. So I would not be surprised, if this situation persists, to see increasing amounts of “justice” being dispensed outside of the court system.

“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.”

Seems like the left has forgotten that Abraham Lincoln had to fight a war with his fellow Americans over such matters.

Good questions.

Another good question: if you are going to get charged with “insurrection” just for a political protest that gets out of hand, then what’s the incentive not to just incite a real insurrection every time you have a political disagreement?

After all, if you actually tried to topple the government, you might succeed, and then you would be hailed as a hero and not be charged with anything.

“Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule...”

Certainly Lincoln, like many Americans, thought the Scott decision was incorrect, but I’m unaware that defied it in a legal sense. Much of the Dred Scott ruling was overturned by the 14th Amendment, so it is obvious that the people of Lincoln’s time still viewed the Scott decision as still legally binding.

I saw someplace that they have found “MORE” classified documents that Biden has kept. Any one else hear about that?

Mark Tushnet is the William Nelson Cromwell Professor of Law Emeritus at Harvard Law School and a former president of the Association of American Law Schools. He is the author of many of the books that America’s law students use while in college.

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