by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Warren Henry explains in a Federalist column that it’s not hard to find ideas on the political left for tranforming the federal courts into political weapons.
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. …
… 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.