Mark Tushnet and Aaron Belkin have caused a stir with their self-styled open letter to President Biden, advising that
if and when [the Supreme Court] issues 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.
Commentary includes this post by Ilya Somin and this post by Howard Wasserman. Professor Wasserman comments:
Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.
Assuming the claim is (as Wasserman says) that the President can disregard opinions but not judgments, I think this is probably the right originalist perspective. At the New Reform Club, Seth Barrett Tillman quotes originalist Michael Stokes Paulsen:
[I]f, with Lincoln, we think this notion of judicial supremacy wrong, then there is nothing wrong with resistance, through all available legal means, to Supreme Court decisions that one in good faith believes improper. The Constitution is not the exclusive province of the Supreme Court. The Court’s decisions are not the Constitution. And neither the Supreme Court nor any other authority properly may declare resistance to judicial decisions to be illegitimate.
Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1301 (2008).
I would add though that following this course of action is a really bad idea (albeit constitutional), for many of the reasons Professor Somin discusses. In particular, it's hugely inefficient if the same issue must be relitigated as to every new plaintiff and defendant. Further, it's easy for the President (or others, such as state authorities) to slip from this position into the claim that they can defy direct court orders. For this reason we have a longstanding executive practice of following not just the Court's judgment but also its interpretation of the law (while at times seeking to persuade the Court to change its interpretation). People who doubt the value of this practice should consider how matters might develop under a President with values and temperament very different from their own.
UPDATE: At Bench Memos, Ed Whelan comments:
I will highlight that, as a critic of what I have labeled the myth of judicial supremacy, I am strongly in agreement with Tushnet on the theoretical point that a president is not constitutionally obligated to accept Supreme Court rulings as final and authoritative determinations of what the Constitution means. As I have argued, the myth of judicial supremacy is flatly contrary to the principle of constitutional supremacy that is the source of the power of judicial review—the power, that is, of courts to review the constitutionality of laws that they are asked to apply. Under a sound departmentalism, the president and Congress should pay due respect to the Court’s constitutional rulings but have their own authority to adhere to their carefully considered interpretations of the Constitution.
Tushnet’s alternative of “Popular Constitutionalism” is very different from a responsible departmentalism. As [Charles] Cooke points out [ed.: here, at NRO], Tushnet, a purported scholar of constitutional law, offers “no comprehensible judicial philosophy” as to what the Constitution means”:
He [Tushnet] provides no rubrics, frameworks, standards, canons, doctrines, or objective arguments of any sort in the course of his proposition. Why not? Because he doesn’t have any.
If I’m understanding the “popular” in “popular constitutionalism” (and perhaps I’m not), Tushnet evidently believes that the people can legitimately alter the meaning of the Constitution by “express[ing] their views at the ballot box” in support of a president who has offered an “alternative interpretation” of the Constitution.
Posted at 12:29 AM