A Flawed “Popular Constitutionalist” Rationale for Disobeying Supreme Court Decisions

Finally, it’s worth noting that many left-wing objections to recent Supreme Court decisions most notably when it comes to abortion and the travel ban case are about situations where the Court refused to enforce rights against the political branches. If the institution of judicial review is preserved, these rulings could well be overturned or at least narrowed by future, more liberal, courts. But if that institution is destroyed, then these rights and every other right will be forever left to the mercy of the political process, including any right-wing populists who might occupy the White House and other positions of power in the future. They will be more than happy to cite “popular constitutionalism” as a justification for whatever they do.

If you believe destroying judicial review is a feature rather than a bug, then the Tushnet-Belkin proposal  is as good a way to do it as any (assuming the president who implements it gets away with it). Tushnet himself is a longtime advocate of “taking the Constitution away from the courts,” and deserves credit for consistency. But we should not be under any illusion that the course of action he and Belkin recommend can be just a limited response to a subset of particularly egregious Supreme Court decisions.

via reason.com

Ilya Shapiro.

Of course popular constitutionalism would only work with the usual rachet, that is, to overturn conservative decisions, not liberal ones.