Ultra Vires

The writer in me appreciates a well-done Orwellian turn of phrase—though the voter in me despises the politics behind it.

Donald Trump’s habit of dismissing his antagonists as “enemies of the people” has a raw old-school charm to it, for instance. There’s no mucking about in that one; it’s a blunt object of demagoguery, true to the man himself.

“Real America,” a favorite of the modern right, is another good one. So is Kellyanne Conway’s immortal “alternative facts.”

The left has its own Orwellian vocabulary, lately preoccupied with (what else?) matters of identity. Theirs is typically more comic than tragic: As Oscar Wilde might have said, one must have a heart of stone to read the term “birthing people” without laughing.

Typically, but not always. Let me introduce you to the phrase “Popular Constitutionalism.” It sounds like something cooked up on a slow news day at Vox to keep the faithful entertained—or at Compact magazine, in fairness. The post-liberal right has also taken a shine to interpreting the Constitution in ways that would, and I quote, “ensure that the ruler has the power needed to rule well.”

“Popular Constitutionalism” shares that aspiration, but it doesn’t come from Vox. It comes from Mark Tushnet, an honest-to-God professor at Harvard Law School and a household name among those of us unfortunate enough to have studied law. (What is it with Harvard professors wanting to trash the constitutional order, anyway?) On Wednesday Tushnet and a co-author published an open letter to the Biden administration calling on the president to ensure that he retains the power to, ahem, rule well even if the Supreme Court purports to deny it to him.

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.

That sounds like dictatorship, Charles Cooke observes. Tushnet would presumably respond by pointing to the part about voters overruling the president at the ballot box. It’s democracy!

It sure ain’t constitutional democracy, though.

A system in which elected officials, not unelected courts, decide which parts of the Constitution are enforced is a recipe for popular dictatorship. The point of enumerated powers and constitutional rights is to protect the individual from the whims of the majority. To permit a national majority, in the figure of the president, to define the scope of those rights and powers is to make an Ouroboros of the Constitution. It’s the end of the judiciary as a meaningful check on the political branches.

Imagine thinking in this age that what America needs is more populism and fewer mediating institutions. That’s Tushnet for you.

Weirder still is how feeble his effort is to distinguish “Popular Constitutionalism” intellectually from rule-by-whim.

Instead of owning what he’s proposing—the president should ignore any Supreme Court decisions he dislikes—Tushnet adorns it with a barely-there limiting principle designed to make his approach sound more objective than it is. The president should respect “good” Supreme Court decisions while ignoring “bad” ones is pure applesauce, to borrow a phrase from Antonin Scalia, no different in substance from Democrats who assert that Roe v. Wade was a “super-precedent.” Whether a ruling is, in Tushnet’s words, “high stakes” or “gravely mistaken”—or a precedent is “super”—is eye-of-the-beholder gobbledygook, easily stretched to accommodate any Court ruling the president wants to restore or ignore as the case may be.

And that’s the point, of course, as the sneering references to “MAGA justices” makes clear. “Tushnet is doing what everyone of his political persuasion does with the Supreme Court: He is saying whatever he needs to at any given moment to maximize the likelihood that he will end up getting his way, and then reversing himself completely when the winds change,” Cooke writes, anticipating the author’s inevitable change of heart about his approach during a second Trump presidency. 

I can’t see a difference between “Popular Constitutionalism” and “common-good constitutionalism” apart from which political fringe each is supposed to serve. It’s as if the illiberal right and left undertook separate expeditions through the wilds of American legal theory in search of a philosophy that will reliably deliver only the outcomes that they favor and, upon hacking through miles of brush, stumbled upon each other.

What makes Tushnet’s proposal even stranger is the timing.

We’re less than a month removed from the Supreme Court delivering a momentous victory for small-D democrats in Moore v. Harper. Two “MAGA justices,” Brett Kavanaugh and Amy Coney Barrett, provided the deciding votes in a case that ensures Republican legislatures won’t have a free hand at the state level if they try to overturn the next election on Trump’s behalf. Two years ago, Kavanaugh, Barrett, and fellow “MAGA justice” Neil Gorsuch voted against hearing Texas’ nonsense lawsuit seeking to toss out the electoral votes in swing states Trump had lost. It’s no exaggeration to say that “MAGA appointees” to the bench at all levels were the unsung heroes of the 2020 post-election period.

“The Court is conservative—but not MAGA,” the Atlantic declared last month after the Moore ruling, correctly. If Tushnet’s grievances were about SCOTUS acting as loyal handmaiden to Trump’s political interests, he plainly wouldn’t have a leg to stand on.

But his grievances with “MAGA justices” aren’t about MAGA. They’re about garden-variety conservatism. In particular, he cites the Court’s decision last month striking down affirmative action programs in higher education as an instance where “Popular Constitutionalism” should lead the president to ignore or modify the ruling as he sees fit.

What if a presidential action taken in the name of “Popular Constitutionalism” isn’t actually popular, though?

Last month a CBS poll conducted shortly before the Court’s ruling asked Americans whether colleges should be allowed to consider race in admissions. Seventy percent said no, including a majority of Democrats. After the ruling, ABC followed up with its own poll asking Americans how they felt about the Court’s decision. Result: A 52-32 split in favor, with 58 percent of independents supportive.

For all of Tushnet’s pretensions to democratic rule, then, in practice he defines “Popular” as “popular with my particular ideological niche”—another similarity with far-right devotees of “common-good constitutionalism” who claim a monopoly on defining “the common good.” You would think he might have at least checked the polling before declaring affirmative action good grounds for “popular” presidential intervention.

It’s one thing to want to burn down the constitutional order. To be lazy about it is unforgivable.

Candidly, I did not expect to find a liberal scholar brainstorming ways to give presidential dictatorship a patina of legal legitimacy at a moment when Donald Trump 2.0 is waiting in the wings and the American right is falling ever more deeply in love with autocracy. 

Absent that context, Tushnet’s piece is a “what was he thinking?” offense. In context, it’s a “was Tushnet drunk when he wrote this?” intellectual felony. (See also far-left Cornel West concluding that now would be an optimal moment to run for president and play Ralph Nader to Joe Biden’s Al Gore.)

This week Sen. Tim Kaine was asked about the prospect of No Labels running a third-party candidate next fall, a mistake that would all but guarantee Trump’s reelection as president. It’s a terrible idea, he argued: “Don’t split up the forces of democracy at a time when the real issue is not Democrats versus Republicans, it’s pro-democracy versus pro-authoritarian.”

That’s well said. Most Democrats (and anti-Trump conservatives) would eagerly agree, Mark Tushnet likely among them. Which makes it passing strange that he’s undertaken at this particular moment to normalize authoritarianism in the guise of empowering “popular” democracy.

If we on the left don’t do it, the right will do it later, he insists.

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.

It is easy to imagine Trump or DeSantis ignoring a Supreme Court ruling on grounds that the culture war demands maximum ruthlessness. Trump toadies as high-ranking as Sen. J.D. Vance have explicitly encouraged him to defy the Court if it prevents him from firing disloyal federal civil servants and replacing them with, and I quote, “our people.” If our left-wing readers want reassurance that the next Republican president won’t give rule-by-whim a go, they’ve come to the wrong pundit.

I’ll reassure them of this much, though: If they want a united front across the left and center-right supporting the Court once the constitutional crisis with Trump or DeSantis arrives, it would behoove them not to normalize the idea that ackshually, constitutional crises are good so long as they produce “good” outcomes.

That’s all there is to “Popular Constitutionalism,” really. And the supposition it’s based on, that the GOP will surely shatter extant norms if the left doesn’t beat them to it, just ain’t true. As abnormal as Trump is, he never quite mustered the nerve to defy a Supreme Court ruling during his first term. (A second term would likely be different, I concede.) He did demand that Senate Republicans eliminate the filibuster in the name of ramming through the MAGA agenda when the GOP controlled both chambers of Congress—and was told to buzz off.

It’s the rare strongman who doesn’t seek a veneer of legal legitimacy for his power grabs. If Democrats start ignoring adverse Court rulings, Trump will exploit that precedent aggressively. Even a Republican president who’s disinclined to do so for civic reasons would be pressured by the base to fight fire with fire. “We can’t unilaterally disarm,” “we need to play by the left’s rules”—these are evergreen populist excuses for sinking deeper into illiberalism, sometimes with valid grievances about double standards to support their logic. Sometimes not.

I understand the left’s frustration with the Court even though I don’t share their frustration with most of its decisions. We’re 50 years into a Republican SCOTUS majority, one that’s now conservative enough to have overruled Roe. It’s hard to vouch for the legitimacy of an institution that keeps handing you major political defeats. You won’t find many hosannas to the majesty of the Warren Court at Federalist Society confabs.

Outcomes aren’t everything in law, but they’re something.

Yet Charlie Sykes is right that progressive initiatives to delegitimize SCOTUS and normalize ultra vires presidential action are playing for near-term wins at the price of catastrophic long-term losses. One would think that legal scholars, steeped as they are in constitutional culture and conditioned to respect checks and balances, would take a longer strategic view. But the Tushnets and Laurence Tribes of the world keep volunteering to justify the left’s most dubious constitutional impulses, all but compelling the right to roll the dice the next time it wields presidential power.

(Tribe is another Harvard guy, by the way. Sarah Isgur and her alma mater have much to answer for.)

For years now, the word “illegitimate” has been thrown around liberally by the left to describe the Court, Sykes notes. That started with Mitch McConnell’s power play in refusing to seat Merrick Garland in 2016, continued when Republicans abolished the Supreme Court filibuster to confirm Neil Gorsuch, extended through l’affaire Kavanaugh, and concluded with the GOP speed-confirming Amy Coney Barrett weeks before the 2020 election. Roe’s demise was the icing on the cake. None of this was remotely illegal or even unethical; the Gorsuch episode in particular was a matter of just deserts. But … it wasn’t very norms-y.

And so the left isn’t in the mood to celebrate the norm of Supreme Court legitimacy, as polls often affirm. Even the president of the United States, having wisely resisted calls from his base to pack the Court, felt moved to denigrate it recently as “not … normal” when it ruled against his side on affirmative action.

I do understand the irritation. But Mark Tushnet and his cohort should understand something too: John Roberts’ Court is the only remaining institution on the American right willing and able to impose its will on Trump.

Senate Republicans have their moments, but when given the chance to disqualify him from the presidency following his second impeachment, they choked pitifully. You can’t count on them. You sure can’t count on Kevin McCarthy or the House. You can’t count on conservative media or conservative governors not named “Brian Kemp.” Name an influential Republican nowadays and chances are far better than not that they’ll sell this country out if and when Trump gives the word. 

But you can perhaps count on Gorsuch, Kavanaugh, Barrett, and the many appellate judges Trump appointed to refuse. You don’t need to like their rulings. All you need to do is refrain from inculcating such deep suspicion of their motives that defying Court decisions begins to enter the political Overton window. None of us will like how that turns out. 

If our Democratic readers are tired of being asked to behave like the comparatively “responsible party” in our era, I understand that too. But America needs at least one. You’re either with the ultra vires model of presidential power or you’re against it. Tushnet has made his choice; I hope he, and we, never have to live with it.