Calls for Popular Constitutionalism in the Rear-View Mirror

In 2023, Mark Tushnet and Aaron Belkin published an “Open Letter to the Biden Administration on Popular Constitutionalism” making recommendations on how the Biden Administration should respond to the “not . . . normal” Supreme Court. It read in part:

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. . . .

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.

The premise of this letter was that the Supreme Court’s conservative jurisprudence is and would be at odds with popular opinion, and that the political branches could enlist popular support to resist the Court’s decisions. However true that premise was at the moment the letter was written, it was a grave error to assume that premise would hold. Today courts will be called upon to constrain MAGA initiatives, and there will be pressure for the Trump Administration to resist decisions that do not go its way. (And, if the first term is a harbinger of things to come, there will be many such decisions.)

President Biden never heeded Tushnet and Belkin’s advice. Can we be so sure that a Trump Administration will be so reticent? Particularly in areas on which the administration was quite clear about its intentions during the campaign, such as immigration, does popular constitutionalism lead in the direction Tushnet and Belkin want it to go?

This is not the first time Tushnet has suggested breaking norms to advance progressive aims, only to find it is conservatives (not progressives) who are poised to act on Tushnet’s recommendations. Recall how he suggested the Supreme Court should abandon a “defensive crouch” posture once Justice Scalia’s replacement was confirmed.

These episodes remind us that opportunistic calls to abandon norms can be quite short-sighted–sometimes dangerously so.

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