Tag: rulings

Law professors urge Biden to defy 'mistaken' rulings by 'MAGA' Supreme Court justices

President Biden should find ways to defy the rulings of “MAGA justices” for their “gravely mistaken” constitutional interpretations, law professors urged in a letter on Wednesday.

Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin penned “An Open Letter to the Biden Administration on Popular Constitutionalism” to respond to what Biden has called “not a normal court” following high-profile cases.

“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,” they wrote.

The letter continued, “We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, 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.”

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Tushnet and Belkin cited a solution known as “popular constitutionalism” claiming “that courts do not exercise exclusive authority over constitutional meaning.” They theorized that Biden could explain how the Supreme Court’s decisions are “egregiously wrong” and offer an alternative constitutional interpretation, particular if the ruling poses a “grave threat.”

“In this particular historical moment, MAGA justices pose a grave threat to our most fundamental commitments because they rule consistently to undermine democracy and to curtail fundamental rights, and because many of their rulings are based on misleading and untrue claims,” they warned.

George Washington University law professor and legal expert Jonathan Turley penned an op-ed for The Hill on Saturday that warned about this interpretation of the constitution.

“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,” Turley wrote.

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He added, “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.”

In 2018, Tushnet and Belkin took part in the “1.20.21 Project,” an effort to counter “Republican obstruction, theft and procedural abuse” in the Supreme Court following the confirmation of Brett Kavanaugh. The project predominantly focused on expanding the size of all the nation’s federal courts and packing them with liberal judges.

Reporters previously pushed the Biden administration to ignore Supreme Court decisions based on its lack of legitimacy back in 2022.

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“The court famously has no enforcement authority. Its authority is based in acceptance of the court’s legitimacy. But it can’t do whatever the hell it wants however it wants and expect deference. [E]xecutive ought to brush off the court’s junta-like attempts to rule by edict,” former Niskanen Center Vice President for Research Will Wilkinson tweeted.

Supreme Court rulings likely to intensify calls from the left to 'pack' the Court

The ruling Thursday on affirmative action, the rulings Friday for a web designer to refuse to design same-sex websites and the decision to strike down President Biden’s student loan forgiveness plan will likely ignite calls by the left to expand or “pack” the composition of the High Court and impose terms for Supreme Court justices.

Calls to change the makeup of the Supreme Court have come from the left following appointments of more conservative justices under former President Trump. Though Congress has taken no concrete steps to dilute the power of justices appointed by Republican presidents, recent high profile rulings against the Biden administration have already inspired renewed calls to add more justices to the bench.

“People don’t have to live under constant fear of the Supreme Court. We can’t sit on our hands while these justices carry out the bidding of right wing organizations,” wrote Democratic Minnesota Sen. Tina Smith in a tweet Friday. “Expand the Court.”

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Biden has not endorsed the idea of expanding the court, even after establishing a commission to study the proposal. He told MSNBC’s Nicole Wallace Thursday that expanding the court would “politicize it, maybe forever, in a way that’s not healthy.” 

However, he also stated his view that the current court is “too young and too conservative,” and could harm the country with its rulings.

The left’s grievances against the makeup of the Supreme Court have roots in recent and distant history. Liberals accuse conservatives and Trump of “stealing” at least two seats and perhaps the Supreme Court, tipping the balance of power among the nine justices.

When Trump surprised Democrats with his 2016 election win, the stage was set to change the ideological makeup of the high court.

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Senate Minority Leader — then Majority Leader Mitch McConnell (R-Ky.) — had refused to allow former President Obama’s pick for the Supreme Court to even have a hearing in 2016 after the death of Justice Antonin Scalia. Obama had nominated current Attorney General Merrick Garland to succeed Scalia, but McConnell and then-Judiciary Committee Chairman Chuck Grassley, R-Iowa, blocked Garland.

McConnell argued that the Senate should not confirm a justice in a presidential election year.

After Trump won in 2016, McConnell then shepherded to confirmation Justice Neil Gorsuch to succeed Scalia in the spring of 2017. In fact, McConnell used the “nuclear option” in the Senate to avoid a Democratic filibuster of Gorsuch. Democrats first used the nuclear option to sidestep filibusters for nominations besides Supreme Court justices in 2013. However, McConnell then detonated the nuclear option, just to muscle Gorsuch onto the High Court. Otherwise, Democrats — still smarting from the Garland experience — could have filibustered Gorsuch’s nomination.

The Senate had never filibustered a Supreme Court nomination. However, the Senate did filibuster the promotion of late Justice Abe Fortas from Associate Justice to U.S. Chief Justice in the late 1960s.

McConnell again relied on the nuclear option to confirm Justice Brett Kavanaugh in the fall of 2018.

After the death of Justice Ruth Bader Ginsburg, McConnell ignored what he said in 2016 about confirming justices in a presidential election year, and pushed through the confirmation of Justice Amy Coney Barrett days before the 2020 presidential election.

BIDEN SHOOTS DOWN SUPREME COURT EXPANSION, SAYS COURT COULD BE POLITICIZED IN ‘WAY THAT IS NOT HEALTHY’

So, liberals are livid over the composition of the Supreme Court and thus the rulings. That is why they are pushing for changing the fundamental makeup of the Court. The size of the Supreme Court is set by statute, not the Constitution, and theoretically could be expanded.

Liberals are still upset that the Supreme Court ruled in favor of former President George W. Bush over Democratic nominee Al Gore in the disputed election of 2000. Because of that, Bush was able to secure two seats on the Supreme Court: U.S. Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006.

The Judiciary Act of 1789 created a Supreme Court comprised of six justices. Congress added a seventh justice in 1807. The Court grew to nine justices in 1837.

The size of the Supreme Court has always been political. In 1863, Congress added a 10th seat to the Supreme Court for President Lincoln. Lincoln never filled that seat, but there was fear that President Johnson may alter the court. So, Congress shrunk the size of the Supreme Court to seven justices in 1867. Once Johnson was gone, Congress switched the number back to nine for President Grant. 

President Franklin Delano Roosevelt tried to “pack” the Court in 1937 — adding justices for every member of the Supreme Court who was over the age of 70. Thus, FDR hoped to install six of his own justices on the Court, but the public was opposed, and the Senate Judiciary Committee emphatically torpedoed the plan.