The New Authoritarians: How Professors Are Now Calling for Biden to Simply Defy the Supreme Court

Below is my column in the Hill on the call of professors for President Joe Biden to simply defy the Supreme Court and decide for himself what is constitutional and what is not.

Here is the column:

I shall resist any illegal federal court order.”

When “the Court’s interpretation of the Constitution is egregiously wrong,” the president should refuse to follow it.

Those two statements were made roughly 60 years apart. The first is from segregationist Alabama Gov. George Wallace (D). The second was made by two liberal professors this month.

In one of the most chilling developments in our history, the left has come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court.

In a recent open letter, Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin called upon President Joe Biden to defy rulings of the Supreme Court that he considers “mistaken” in the name of “popular constitutionalism.” Thus, in light of the court’s bar on the use of race in college admissions, they argue that Biden should just continue to follow his own constitutional interpretation.

The use of the affirmative action case is ironic, since polls have consistently shown that the majority of the public does not support the use of race in college admissions. Indeed, even in the most liberal states, such as California, voters have repeatedly rejected affirmative action in college admissions. Polls further show that a majority support the Supreme Court’s recent decisions.

So despite referenda and polls showing majority support for barring race in admissions, academics are pushing to impose their own values, regardless of the views of the public or of the courts.

However, even if these measures were popular, it would not make them right. It is precisely what segregationists such as Sen. James Eastland (D-Miss.) argued, that “all the people of the South are in favor of segregation. And Supreme Court or no Supreme Court, we are going to maintain segregated schools.”

Tushnet and Belkin cite with approval Biden’s declaration that this is “not a normal Supreme Court.” Biden’s view of normalcy appears to be a court that agrees with his fluid view of constitutional law, by which he can forgive roughly a half of trillion dollars in loans or impose a national eviction moratorium without a vote of Congress.

Tushnet and Belkin know their audience. Biden has previously evinced little respect for the Constitution or the courts. Take the eviction case. In an earlier decision, a majority of justices had declared that Biden’s actions were unconstitutional, confirming what many of us had said for months.

Even after the majority declared it unconstitutional, Biden wanted to reissue the national moratorium. White House counsel and most scholars told him the move would be blatantly unconstitutional and defy the express ruling of the court. Instead, he consulted the only law professor willing to tell him what he wanted to hear and did it anyway. It was quickly again declared unconstitutional.

Other commentators and academics have gone from implied to open contempt for our constitutional norms.

Georgetown University Law School Professor Rosa Brooks was celebrated for her appearance on MSNBC’s “The ReidOut” after declaring that Americans are “slaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country.

MSNBC commentator Elie Mystal called the U.S. Constitution “trash” and argued that we should simply just dump it.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) has questioned the need for a Supreme Court.

In a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”

So the danger is now “constitutionalism,” as opposed to what Tushnet and Belkin call “popular constitutionalism.”

Many have called for the court to be packed with liberal appointees to bring it back to what Biden views as “normal.” Some of these calls before Biden’s Supreme Court commission echoed the same views as Tushnet and Belkin. Indeed, they cite Harvard professor Nikolas Bowie, who rejected the notion that “the constitutional interpretation held by a majority of Supreme Court justices should be ‘superior’ to the interpretations held by majorities of the other branches.”

The Framers saw the Supreme Court as playing a counter-majoritarian role when it is necessary to protect individual rights and constitutional norms. The alternative is what the Framers viewed as a tyranny of the majority, where popularity rather than principle prevails. For that reason, the Court has often stood with the least popular in our society and, since Marbury v. Madison, has had the final word on what the Constitution means.

Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”

That finality has been essential to the stability of our system for generations. While presidents such as Andrew Jackson taunted the court for its inability to enforce its rulings without an army, it has never needed one. Respect for the court is in our DNA. No matter our disagreements with a given decision, Americans will not tolerate defiance of the institution and the rule of law. That is why, despite the support for court packing by many law professors (including Tushnet, Belkin and Bowie), the public remains staunchly opposed to it.

What is most striking about these professors is how they continue to claim they are defenders of democracy, yet seek to use unilateral executive authority to defy the courts and, in cases like the tuition forgiveness and affirmative action, the majority of the public. They remain the privileged elite of academia, declaring their values as transcending both constitutional and democratic processes.

The problem is indeed “constitutionalism,” and their view of “popular constitutionalism” is a euphemism for “popular justice.”

Tushnet and Belkin show the release that comes with rejecting constitutionalism. They declare that it is not enough merely to pack the court: “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.”

In other words, they are calling for Biden to declare himself the final arbiter of what the Constitution means and to exercise unilateral executive power without congressional approval. He is to become a government unto himself.

No doubt a new variation of “popular constitutionalism” would then be crafted if a Republican were ever elected and proceeded to mete out an alternative view of justice.

This is what Tushnet has advocated in “taking the Constitution away from the courts.” Once the courts are removed from constitutionalism, however, we will be left where we began centuries ago: with the fleeting satisfaction of popular justice.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University.

219 thoughts on “The New Authoritarians: How Professors Are Now Calling for Biden to Simply Defy the Supreme Court”

  1. Anonymous
    The MacCarthy era is forever associated with Joe MacCarthy and Republicans.

    That is despite the fact that MANY – including some democrats were active supporters of the Blacklisting and censorship.

    Absolutely some on the right – past and present have and are making the same heinous mistakes democrats are making.

    There is no requirement that equal time be given to exploring their sins –
    Just as we have forgotten, and never paid much attention to the democrats who supported blacklists and censorship in the 50’s

    I, others and Turely are speaking out against censorship.

    The biggest and most frequent examples – BY FAR today, the most orgnaized censorship BY FAR today is from the left.

    We can deal with actual censorship from those on the right AFTER we have defeated the larger problem.

    “And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?
    Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?
    Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.”

  2. Anonymous

    If you have some claims of misconduct by alabama republicans – raise them.

    As to Eastman – his “theories” are very neary what actually happened in the Harrison election in the 19th century – it is no theory at all.

    Nor did Prof Lawrence Tribe who first raised this approach in 2016 for Hillary Clinton.

    But lets say this just was a Theory.

    Mailin voting is just a theory. For over 200 years of US history there was no mailin voting.
    Voting experts such as jimmy carter proclaimed it the quickest route to rigged elections.
    38 states have constitutional provisions that bar mailin voting – yet many of those had and still have mailin elections.

    Should we send those who advocated for the “theory ” of mailin elections to jail ?

    It is not a crime to propose something your political opponents do not like.
    It is not even a crime to advocate for something that many believe is WRONG.
    It is not a crime – even if that is incontrovertably correct.

    From before the french revolution through the present Equity has ALWAYS ended badly – nearly always with copious blood in the streets.

    Yet, no one is being jailed for advocating for marxism, or DEI any of the other complete an destructive insanity on the left.

    In the united states it is not a crime to be wrong – even wrong about the constitution.

    It is not actually possible to act unconstitutionally OUTSIDE OF GOVERNMENT.

    If you wish you can petition congress to lock up every gun owner in the country, or every person that is prolife.

    This becomes a violation of the constitution when congress ACTS on it.

  3. “…the left has come to embrace the authoritarian language and logic of segregationists”

    “The Left”, ie Democrats, ARE the segregationists! They are the party of slavery, segregation, eugenics, the KKK, etc, who have always embraced authoritarian language. Communist Party USA naturally folded into the Democrat Party and brags about how they have used the Democrat Party to achieve what they never could have achieved on their own.

    1. Well said. Really, the only constant in U.S. politics since the 1820’s has been the incessant focus of the Democrat party to organize our society by race. Slavery, Civil War, Jim Crow, Affirmative Action, are all products of Democrats. In any other world, Democrats would be considered the moral equivalent of Nazis and, just as Germany abolished Nazis as a party, the Democrat party should be abolished here.

    2. Those “professors” aren’t but Marxists (i.e., Revolutionary Communists) in disguise. Sergey Nechayev (Lenin’s inspiration) taught that the “good” Marxist “… knows only one science: the science of destruction. For this reason, but only for this reason, he will study mechanics, physics, chemistry, and perhaps medicine. But all day and all night he studies the vital science of human beings, their characteristics and circumstances, and all the phenomena of the present [non-communist] social order. The object is perpetually the same: the surest and quickest way of destroying the whole filthy order.“ Read the rest of Nechayev’s “The Catechism of the Revolutionist” (the inspiration of Lenin & followers, including Alinsky) to grasp how Bolshevized the ideological & praxis core of the DemocRAT Party is, that is, how engaged is in the destruction of the USA tha The Founders CONSTITUTED. That’ll make you patriotically civically enraged.

  4. What do America’s Christians and college professors think about the nearly 1 million persons (most likely totally innocent) being blacklisted and destroyed for over 20 years? Still being harassed today by local, state and federal officials.

    Deafening silence to one of the world’s greatest evils in over 200 years! Not a peep from anyone. What cowardice of our leaders!

    1. The authoritarians published a paper yesterday in JAMA. Not a good look for Yale School of Public Health, all authors were PhD types, and worse, touted as “science” by their Dean, Megan Ranney who is an MD.

      Excess Death Rates for Republican and Democratic Registered Voters in Florida and Ohio During the COVID-19 Pandemic

      Findings: In this cohort study evaluating 538 159 deaths in individuals aged 25 years and older in Florida and Ohio between March 2020 and December 2021, excess mortality was significantly higher for Republican voters than Democratic voters after COVID-19 vaccines were available to all adults, but not before. These differences were concentrated in counties with lower vaccination rates, and primarily noted in voters residing in Ohio.

      Source: JAMA Intern Med. Published online July 24, 2023. doi:10.1001/jamainternmed.2023.1154

      Megan Ranney MD MPH 🌻
      “After May 1, 2021 when vaccines were available to all adults, the excess death rate gap between Republican and Democratic voters widened from −0.9 percentage point (95% PI, −2.5 to 0.3) to 7.7 percentage points (95% PI, 6.0-9.3).”

      Leadership matters.


      Happily the paper and the Dean are getting trounced on Twitter by other academic physicians. Perhaps public peer review is overdue. To wit:

      Vinay Prasad MD MPH
      Now do school closure, toddler masking and forcing adolescent men who had COVID to get boosters that don’t stop transmission

      This paper is a joke. It doesn’t even have individual vax status. If you want to say being R is bad for health. Need a pristine analysis. Not this.

      You could do the same analysis for being poor, and conclude
      “See, be rich”

      Beyond messed up

      Public health used to be for everyone, not just Biden supporters. Disappointing

  5. JT – Do you have any interest in reviewing the work that Cass Sunstein has put out recently offering the judiciary, lawyers and law students advice on how to interpret the US Constitution?:

    Sunstein is currently teaching at Harvard Law School, after his work in the “cockpit of government” atop OIRA under the Obama administration, incorporating “Nudge” behavioral science into every nook and cranny of government, coordination with federal, state and local levels to help eliminate opposition to unpopular public policies using psychological mind farkery. Behavioral Science being The Science (TM) of the pandemic. And much of the rest of the insanity passing for science these days.

    His teaching how the US Constitution should be interpreted, taking that “living, breathing” document into the the world of distortions and illusions, wielding Olympic-level linguistic gymnastics to make Collectivist Authoritarianism fit under our Constitution, truly Orwellian “Freedom is slavery” level stuff. Applied psychological manipulation to manufacture consent for totalitarianism.

    Following this type of science was warned against by esteemed legal scholar and philosopher, Walter Berns six decades ago:
    Law and Behavioral Science
    Law and Contemporary Problems (Duke Law School), Winter, 1963
    [The first 14 pages get into a game theory type application of behavioral sciences on judicial philosophy. In trying to understand the rulings of the Roberts court it could be speaking to the same philosophy. The final 14 pages are very informative and cautionary for the type of governance we are being subjected to today.]

    And Chief Justice Roberts is a big fan of “Following The Science (TM)” as his guide to jurisprudence, even cited the very influential behavioral health publication Health Affairs in his Obamacare (ACA) decision:

    The US Constitution is being rewritten in front of our own eyes. And a majority of justices are good with that. Don’t look to them to hold the Biden administration accountable for defying their decisions.

    1. Freedom Fox,

      You might not be aware but this web log only allows two hyperlinks per comment. I edited your comment by removing the protocols from two of the links links so that it would post. If in the future you would like for the readership to review more than two links this can be accomplished by posting multimple comments of one or two links each.

    1. If you got a 18 year old who doesn’t know what to do…college or not….have him or her study hvac. You can get a level one off you tube….and level two from you tube. For cheap. Once they get their epa license it is good for life! And they’ll have work installing all these newly mandated heaters. And fixing them. The new economy…..meanwhile apparently refriderants…..are explosive… while every new hot water heater is allegedly more efficient…..every condo is now sitting on their next door neighbors litteral bomb off propane… the firewalls will nix the savings anyhow…..but she is the cabinets secretary so she is the smartest one in the room.

    2. Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin are prime examples of people educated WAY BEYOND THEIR LEVEL OF INTELLIGENCE. Their clarion call? – Just ignore the Constitution and the Supreme Court. Do whatever you want. Stalin would love these two characters.
      Our once great universities are now lousy with this kind of intellectual mediocrity.

  6. Well, Obiden could do that; it’s not as if he’s spending his own money on the lawsuits, which there would be an endless docket of. Maybe these mysterious professors would be willing to shell out. And/or do the jail time. SCOTUS merely issues opinions, which of course can be used as precedent in court cases. Which is where Obiden’s ignoring them would lead.

  7. The universities have been doing this all along, in fact almost all government personnel practices at the federal levels as well. Bakke said “no quotas” so they just re-named them as “goals” “plus factors” etc. The federal government has maintained ham-fisted race quotas for 50 years and all the Democrat-run cities and states have done the same. The “disparate impact” theory has been used to force UNequal treatment (as predicted by Barry Goldwater in 1965). New York City is paying $2 Billion to people who failed the teacher qualification test–but only if they are black or Hispanic.

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