Mark Tushnet is a leading critic of the Supreme Court and of the way judicial review is practiced today in the United States. Following the Court’s recent decision on affirmative action, Tushnet and Aaron Belkin wrote an open letter urging President Biden to defy the Supreme Court (my bold):
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.
I share many of their doubts about the way judicial review works in the United States, and about the abuses of the Roberts Court specifically. But I also have serious doubts about the wisdom and practicality of defying the Supreme Court, even when its decisions are manifestly political, opportunistic, and wrong on the merits. The way to tame the Court is through politics: Democrats need to discredit the Court, win elections, and bring the Court under control through recognized constitutional procedures – legislation, jurisdiction-stripping, court-packing, term-limits, etc. There is no plausible alternative.
There are many ways to run a constitutional democracy
In any constitutional democracy, some official or group must have the authority to decide whether acts of the legislature and executive are consistent with limits prescribed in the constitution. In the United States, the Supreme Court has claimed that authority for itself, but there is nothing in the constitution that requires this result, nor is there any logical necessity for this power to be vested in the Court. It could be up to Congress to ensure that legislation is consistent with the constitution. Alternatively, the Court and Congress could share this power in some way (for example, the Court could have the power to declare a law unconstitutional, but Congress could have the power to overrule the Court).
These are not just theoretical possibilities. As Belkin and Tushnet note, “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.”
Practical problems with defying the Court
Nonetheless, there are real problems with limiting the Court through unilateral executive action. Many rulings would be hard to defy because the government would need the support of the court system to enforce its preferred interpretation of the law. In Moore v. United States, a case to be decided this term, the Court may well invalidate a large swath of tax laws on grounds that are highly contestable. (The case concerns the constitutionality of taxing unrealized gains. For some criticism of the substance of the constitutional claims see here and here. Remarkably, the case also implicates the questionable ethics of both Alito and Thomas.) It is entirely reasonable to think that our arrogant and unrepresentative Justices should not have the power to do this, and one way to limit the power of the Court is for Biden to challenge the Court directly. But how exactly would the administration enforce tax laws that the Court has ruled unconstitutional? Will the IRS throw accused tax cheats in jail without trials? Similar enforcement problems would arise if the President tried to force compliance with OSHA’s vaccine mandate that the Court struck down. And what would it even mean to defy the Court’s egregious voting rights decisions? Would the administration use federal troops to prevent gerrymandering in North Carolina or Wisconsin without a court order? In other cases, defying the Court would leave people with the threat of future adverse action hanging over their heads. If the administration defied the Court and cancelled student debt according to its plan that the Court struck down, students would be vulnerable to a future administration arguing that the cancellations were not legally effective. Or suppose that the Court holds that abortion drugs cannot be mailed in interstate commerce to women in states that ban their use. The President might be able to announce a non-prosecution policy under federal law, but people who supply the drugs would be vulnerable to future prosecution under a different administration.
Belkin and Tushnet tacitly recognize these difficulties. The one concrete proposal they make is for the administration to read the Court’s affirmative action decision narrowly:
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.
Reading a decision narrowly is different than defying the Court by substituting the views of the Executive branch for the views of the Court. And the Court can easily expand its affirmative action holding to federal hiring and any other area where the Biden administration attempts to use racial preferences. Remember that the Biden administration chose not to appeal decisions giving black farmers and business owners preferential access to COVID aid, presumably because it was clear that the administration would lose.
Thinking about democratic stability at the margin
Belkin and Tushnet are aware that their proposal to defy the Court is risky, but justify it by pointing to “the grave threat posed by MAGA justices”.
This logic rests on a misdiagnosis. The real threat we need to focus on is a second Trump presidency, which would be a catastrophe for the rule of law, for American democracy and, indeed, for the fate of democracy around the world. Having the Biden administration defy the Court only makes sense if it reduces this overriding, existential risk to human freedom. Viewed in this light, defying the Court on matters like affirmative action would be a serious error, for several reasons.
First, defying the Court would likely aid Trump in the 2024 election. Many decisions of the Court that liberals deplore are popular, including the affirmative action decision that Belkin and Tushnet want the administration to resist. I suspect that trying to enforce the OSHA vaccine mandate or to cancel student loans according to the original administration plan would also be unpopular. (And paradoxically, the Court’s deeply unpopular decision overturning Roe has been an electoral boon to the Democrats. If the Biden administration figured out how to successfully reinstate abortion rights, despite the difficulties noted above, this would be a substantial benefit to Trump.)
Second, Republicans would view any defiance of the Court as deeply threatening, and this would boost Republican voter turnout. More generally, any effort by the Biden administration to defy the Court would encourage Republican efforts to win the 2024 election at any cost. Furthermore, the Court itself might become less likely to resist democratic erosion from the right if it feels that its prerogatives are threatened by the Democrats.
Finally, if the Biden administration defies the Court, the risk that Trump would do so if he wins in 2024 will increase. Belkin and Tushnet make a subtle error when they address this issue (my bold):
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.
What matters is not the fact that Trump may well defy the Court in a second term, regardless of what Biden does. The critical question is how defiance by the Biden administration will influence the probability that Trump successfully defies the Court. Undoubtedly, defiance by Biden will increase the risk of defiance by Trump, and the likelihood that the Court will allow Trump to undermine the rule of law. As usual, thinking at the margin is critical.
There are many practical steps that can be taken to rein in our out-of-control Supreme Court. Term-limits, court-packing, and jurisdiction-stripping should all be on the table, but these reforms can only be implemented after the Democrats win elections and build a consensus for reform. In fact, if the Democrats regularly win elections the Court would likely trim its sails and the threat posed by the Court to individual rights, the integrity of elections, and the administrative state would be greatly diminished. On the other hand, if the Democrats fail to become a majority party and the Republicans remain MAGA, defiance of the Court by Democratic presidents will be at best a symbolic act of little significance, and at worst a provocation that further undermines democratic stability.