If there is any concrete claim against the current Supreme Court lineup, it’s that President Obama’s nominee, Merrick Garland, didn’t get his hearing before the Senate. While it may not have been unlawful for then-Majority Leader Mitch McConnell to game the Constitution by denying Garland his hearing, it flouted norms and the Senate’s responsibility. That he got away with it doesn’t mean it was the right thing to do.

But that puts one seat on the Court in issue, and even if Garland had been confirmed, a move that might not have been nearly as beneficial for Democrats as they want to believe, it would still leave the Court with a 5-4 majority at the end of Trump’s term. The push to get Amy Coney Barrett confirmed in the waning minutes of the term, while certainly offensive to progressives, was by no means unlawful. And as the saying goes, elections have consequences, and Trump got to pick the justices he nominated. That’s the way our system works, whether for a Democrat or a Republican or Trump.

Since then, there has been a massive and ongoing effort to delegitimize the Supreme Court, as if having a majority of justices you don’t like and who make rulings with which you disagree renders the Court a sham. If the tables were turned, the left would be ecstatic to have SCOTUS pull rulings they prefer out of its collective butt. The Court is no more, nor less, legitimate based on whether its decisions comport with popular will.

Or is it? Retired Harvard constitutional law professor Mark Tushnet has come up with a theory, even given it a name, that would make former Chapman Law School dean John Eastman blush.

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.

Ilya Somin interjects that these aren’t exactly MAGA justices, but rather conservative justices following an agenda distinct from MAGA, which has no agenda other than making us bow before the engorged belly of Donald. That we may not like them, or agree with their rulings (as if finding fault with Supreme Court rulings [remember Whren and Heien, for example?]  wasn’t the national past time for lawyers before) is nothing new.

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box.

If you want to really shred precedent, why not start with Marbury v. Madison, right? There has long been an argument that the President, in the exercise of his powers to fulfill his political obligations to the nation, should push the envelope of constitutional rights and duties in the direction he believes serves the public good, leaving it up to the Court to hit the brakes should he push too far. But that’s not at all what Tushnet urges. Rather, he urges that the president be empowered to direct the vice president to reject the Electoral College and…wait, that’s Eastman again.

We do not believe that President Biden should simply ignore every MAGA ruling. The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question.

And who decides what constitutes a “high stakes ruling” or a “gravely mistaken constitutional interpretation”? Do we abide the Supreme Court’s decisions unless we don’t like them, and then we do whatever we want?

Such actions could help contain the grave threat posed by MAGA justices. For example, President Biden could declare that the Court’s recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court’s interpretation of the Constitution is egregiously wrong.

This paragraph points out the irony of Tushnet’s pitch, given that the majority of Americans are against race-conscious admissions. He would have the president both ignore the Supreme Court and ignore the will of the people, as long as the president didn’t ignore his will? Then again, if the government could ignore unpopular Supreme Court rulings, what would have come of Brown v. Board of Ed? Cool theory, Tush.

But Tushnet isn’t unaware of the “possibility” that Republican presidents would seize upon his theory as well.

Popular Constitutionalism is not a silver bullet against MAGA justices. Its success requires support from members of Congress and the public generally. Nor is Popular Constitutionalism in the form of presidential action risk-free, as future GOP administrations would cite it as precedent for ignoring federal courts. Notably, though, Republican presidents might well ignore federal courts regardless of what President Biden does. The GOP’s failure to hold President Trump accountable for inciting a violent coup is perhaps the clearest of many indications that party leaders and followers are no longer committed to democracy or the rule of law. It is not hard to imagine that a President Trump or DeSantis would circumvent or ignore rulings issued by a liberal Supreme Court.

And yet, Tushnet proceeds because “a solid majority of the public understands the danger posed by unchecked MAGA justices” and they will protect America from ruin. Perhaps by rushing the United States Capitol to seize control and prevent it from complying with the Constitution and rulings of the Supreme Court. Oh wait, that was Eastman too.