The United States Court’s are an important foundational check on laws and policies that would violate the US’s democratic norms and institutions. Many see the Court’s rulings against the Trump administration as a marker of its strength. Even so, I am interested in understanding how the Court would respond to a populist leader who is able to more effectively use democratic institutions to undemocratic ends. This blog post analyzes the Court’s potential shortcomings in the event of such an erosion of democracy and provides two changes that would allow the court to align itself less with political parties and more with systematic, ideological values. Furthermore, these changes would better prepare the Court to stand up to future leaders and regimes who may attempt to erode democratic institutions through methods of stealth authoritarianism.
Stealth authoritarianism is a term coined by Ozan Varol to explain a new tactic employed by authoritarian leaders since the end of the Cold War. They “obscure anti-democratic practices under the appearance of legal mechanisms that exist in regimes with favorable democratic credentials”. Ozan describes three ways in which courts could be used by an anti-democratic leader or regime but a regime bent on power consolidation appears to be a vulnerability of the Courts.
If an anti-democratic leader were to rise to power in the US through conventional means and begin to consolidate power through one of our two main political parties, is it not out of the question that the Court would allow violations to the individual rights of the people and the regime’s consolidation of power. Ozan writes about this dynamic generally, arguing, “although occasional judicial resistance remains a real possibility, consistent counter-establishment jurisprudence is unlikely. Judges are strategic actors. They do not operate in a vacuum. The judiciary is influenced by the political environment in which it operates, and judges are unlikely to engage in a sustained resistance effort against powerful incumbents”. The United States’ process of Presidential nomination of Supreme Court justices ensures that partisan considerations will always be taken into account when filling judicial vacancies. Tom Ginsburg and Aziz Huq fear that if the Supreme Court’s self-interest allows it to expand its jurisdiction in conjunction with “a handful of judicial appointments”, that we could see “a judiciary that is decidedly part of the governing coalition, rather than a check upon it”. The right storm of anti-democratic changes, partisan alignment, and jurisdictional expansion could mechanize the Supreme Court as an agent of democratic backsliding, not a strong check on such practices.
The vulnerability of the US Supreme Court to this type of partisan power consolidation could be mitigated by the introduction of two policy changes that would insulate the court from the reach of the other branches. US Supreme Court justices are all elected through the same Presidential nomination and Congressional confirmation processes and they serve with no term limit. Spreading the nomination and confirmation of the Supreme Court Justices to the people would reduce the power to pack that a potentially anti-democratic leader would have and thus increase the strength of the Court to stand up to such a regime because of their various electoral paths. This could be done directly or through a more representative system of Judicial Elections. Additionally, involving a more diverse set of institutions for the Justices’ nomination and confirmation would reduce the ability of a regime to interfere. The insulation of the judiciary would be expanded further if term limits were set for the justices as well. This allows for the replacement of a justice that has failed to uphold the legitimacy and ideological independence of the Court. As Aziz Huq demonstrates in his work, Democratic Erosion and the Courts: Comparative Perspectives, we can turn to other contexts to see the validity of these reforms. In one of the rare instances in which a constitutional court was able to stand up to and oppose a leader trying to pass undemocratic legislation, Colombia in the 2000s and President Alvaro Uribe Velez, we observe a court that is difficult to pack due to its organization and one with judicial term limits. Though this does not ensure that the Supreme Court would be able to stand up to an anti-Democratic regime, it does suggest a relationship between oppositional strength and term limits and diverse institutional involvement in the appointment of justices of a constitutional court.
There are many other potential solutions to the role of political allegiance and the Supreme Court. This blog post deals primarily with the work of Ozan and Huq. In order to better prescribe policy that would best serve the Judiciary and thus the American people, other authors would need to be included in the study. This post cannot deal with every possible implication of such a general and vague counterfactual but instead aims to warn about the pitfalls of such a political Judicial Branch and its potential vulnerabilities through the window of this potential future scenario.
While the capture of the American polity and its institutional power structure on a large scale by an anti-democratic coalition is not an immediate threat, there are signs of democratic erosion and backsliding in the US. Small foundational changes such as the ones suggested in this post could go a long way in ensuring that our checks and balances against such a regime if it were to rise, are strong and able to defend the norms and institutions that define our governmental apparatus.