When Vox published “The case for abolishing the Supreme Court,” no one on the right could have been shocked. The left has reacted to recent political losses by attacking the legitimacy of the Electoral College and the Senate, so why should the Supreme Court be any different? What may be surprising, however, is that Vox’s expert on “abolishing the court” has advanced ideas far more extreme.
Vox describes Mark Tushnet as “a law professor at Harvard University.” This vastly understates his credentials. Tushnet is the author or co-author of dozens of books, including two constitutional law textbooks that have been in common use at law schools for decades.
He is also a prolific and influential author of law review articles. A 2015 study listed Tushnet as the seventh-most cited law professor in legal academia. There is no reason to think much has changed since. In the parlance of Ron Burgundy, Tushnet is kind of a big deal in legal circles.
Strictly speaking, Tushnet does not advocate abolishing the Supreme Court. Rather, Tushnet favors getting rid of judicial review. Even here, what he really critiques is judicial supremacy, the idea that the Supreme Court is the final arbiter of what the Constitution means. He believes legislatures ought to be able to overrule the court in a “dialogic” process.
Tushnet notes that, unlike many progressives, he has held this position for years. He also correctly notes that Robert Bork advanced a roughly similar position in his later years. However, Bork and Tushnet arrived at that position from entirely different perspectives.
Bork argued against judicial supremacy because he believed the courts, legal academia, and eventually the general legal community had become dominated by a priestly class of anti-democratic left-wing elites, people like Tushnet’s colleagues. Tushnet has the opposite view of history. Tushnet was present at the birth of a school of legal thought called “critical legal studies” (CLS), the essence of which is the idea that “law is politics.”
Encyclopedia.com describes CLS this way: “CLS scholars attempt to debunk the law’s pretensions to determinacy, neutrality, and objectivity. The law, in CLS scholarship, is a tool used by the establishment to maintain its power and domination over an unequal status quo. Openly a movement of leftist politics, CLS seeks to subvert the philosophical and political authority of what it sees as an unjust social system. CLS advances a theoretical and practical project of reconstruction of the law and of society itself.”
Unsurprisingly, when Tushnet is asked how he would decide cases, his answer “in brief, is to make an explicitly political judgment: which result is, in the circumstances now existing, likely to advance the cause of socialism?” Accordingly, Tushnet has advanced ideas more extreme but arguably more feasible than the abolition of judicial supremacy.
In May 2016, Tushnet published a six-point manifesto for how the half of the federal judiciary appointed by Democratic presidents ought to proceed if Hillary Clinton won the presidency. That manifesto was, to use a legal term, a doozy.
Tushnet’s primary plank was that “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided.” This advice directly contravenes the principle of stare decisis—that courts should follow precedent, even when the soundness of the precedent is in doubt, with any decision to overrule precedent requiring great caution.
While Democrats grilled Republican judicial nominees about the need to respect precedent and asked whether they consider Roe v. Wade to be a “super-precedent,” Tushnet was ready to abandon what he calls “defensive crouch liberal constitutionalism.” He would swiftly overrule the limits Casey v. Planned Parenthood placed on Roe.
Tushnet also declared the left has won the culture war and should start acting like it. He would take a “hard line” with the right: “Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)”
Regardless of whether that history is sound, we can at least appreciate the irony of a CLS scholar invoking Justice Antonin Scalia to pretend the culture war is some recent development. We can also admire the deftness required to argue the left won from the position of a defensive crouch.
The CLS spirit informs other Tushnet planks. “Remember that doctrine is a way to empower our allies and weaken theirs.” Tushnet concedes the Supreme Court’s approach to issues like voting rights and campaign finance is not designed to have those political effects. But given Tushnet’s introduction and general philosophy, it is easy to read him as advocating for progressive judges to act with political intent. This is why Tushnet holds up William Brennan and Thurgood Marshall as role models and only reluctantly endorses the notorious Ruth Bader Ginsberg.
In fairness, Tushnet’s final plank—“f*** Anthony Kennedy”—was shared by many conservatives prior to Kennedy’s retirement. That lawyers had to craft arguments to appeal to Justice Kennedy’s emotional whimsy irritated all sorts of people. This island of agreement in no way detracts from Tushnet’s general approach.
It might be tempting to dismiss Tushnet as just one scholar, no matter how influential, even if similar scholarship proliferates throughout legal academia. But consider Democrats’ approach to the confirmation of Justice Neil Gorsuch.
They complained about the Senate’s refusal to consider President Obama’s nomination of Merrick Garland, a political objection not bearing on Gorsuch’s qualifications. They attacked the concept of judges as neutral umpires and blasted Gorsuch for not favoring their preferred outcomes, as in the so-called “frozen trucker” case. Relatedly, Democrats generally attacked conservative schools of thought like originalism and textualism.
In these attacks, Democrats embrace the basic CLS tenet that judging is simply another form of politics. This embrace echoes the rise of the politicized life on the left. When everything is political, the most extreme views of scholars like Tushnet can make their way to the center stage of American politics. Abandoning judicial supremacy seems bipartisan by comparison. Such are the stakes of judicial confirmation struggles in this political moment.