Abolishing the Supreme Court: Liner Notes

I have a new column at The Federalist today, “Abolishing The Supreme Court Isn’t The Left’s Most Extreme Idea For Weaponizing Courts.” Vox interviewed Harvard law prof Mark Tushnet about abolishing judicial supremacy, the idea that the Supreme Court is the final arbiter of what the Constitution means. My column notes that Tushnet is more influential than the average Harvard law prof, the idea of abolishing judicial supremacy was advanced by Robert Bork (for almost the opposite reasons Tushnet has), and Tushnet has advanced more extreme yet more feasible ideas for further transforming the Court into another purely political branch of government.

What got left out? Mostly details and examples that would have enriched the main points. For example, I note that 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.” I did not have space for stories like this one, which can be found at that first link in this graf:

“Mark Tushnet was the spokesman for the Marxists and he gave a speech at the end of the first day in which he said no serious theory of law is possible without the labour theory of value. When Mark made the speech there were only about 35 people in the room, but you could see just about a million different expressions. This is what provoked Galanter, Macaulay and Friedman to basically walk out. They didn’t actually walk out; they just didn’t come back for the remaining sessions.”

So I had to make due with Tushnet’s more well-known and recent quote about using the courts to advance socialism — which makes the point, though I would have loved to tell that story with its kicker: “Mark actually abandoned the labour theory of value soon thereafter.”

It also would have been nice, for example, to note that one of the cases Tushnet would overrule for being “wrong on day one” is Bakke, the case which both allowed yet limited the use of affirmative action in higher education. Affirmative action is also widely unpopular, except with the far-left bloc that dominates academia, Big Media, etc. According to a newly-released report from More in Common (not a right-wing organization), progressive activists comprise a mere 8% of Americans and hold views out of step not only with moderates and conservatives, but other liberals and core demographics of the Democratic Party base. Progressive activists are the least racially diverse group, except for the most devotedly conservative 6% of Americans. The report found that 85% of Americans believe that race should not be considered in decisions on college admissions. Even 72% of traditional liberals are against the practice. Yet 60% of progressive activists support it. So while progressives are trashing institutions for not reflecting the popular will, understand that the popular will is merely the left’s justification when convenient. And that populism really serves the popular will less than it serves some faction.

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