President Trump has left a legacy that is more impactful than several presidents. However, this might not necessarily be due to his demagogic rhetoric or political blunders, but because of the Supreme Court. He appointed three supreme court justices, which is the most in one term since President Nixon. It also puts the courts at a 6-3 conservative majority.
Donald Trump clearly has an authoritarian mindset, which can be proven as he often rejects the democratic rules of the game . This can be seen today as he still fails to acknowledge that he lost this past election. He also has rejected the legitimacy of his opponents, incited violence, been inclined to curb civil liberties . If he was elected for a second term, he could have possibly tried to use the courts as a weapon for democratic erosion. He fortunately lost the election for his second term before he could influence the Supreme Court further, but what if another autocratic minded president comes into power? This could seriously spell trouble for the integrity of the Supreme Court and the maintenance of Democracy in the United States.
What is especially concerning is that this scenario of another undemocratic president being elected is possible. In the past, presidential candidates with demagogic tendencies were filtered out through political parties in the primaries . Political parties acted as gatekeepers against authoritarians, and they did this through having party leaders in charge of the nomination process in the primaries. The party elites acted as a filter against threatening candidates. However, with the primaries now being decided by the citizens, political parties are no longer as effective in their role as gatekeepers . The new form of gatekeeping currently is through the “invisible primary” which happens in the beginning of one’s candidacy. The invisible primary is where candidates need endorsements and fundraising to move forward in the election cycle . The establishment can hold off on providing funds to undemocratic candidates and endorse other politicians who care about democratic principles, which could lead to them dropping out of the race before they can really gain traction. However, the problem with the invisible primaries is if presidents are already famous and rich, which would lead to them not necessarily needing endorsements or fundraising to win the election . They can use their own status as a celebrity to promote their candidacy, which is exactly what President Trump did. This is how he was able to bypass the invisible primary, and this could easily happen again in the future if another famous, rich demagogue wants to be president.
Another presidential hopeful with the ideology of a dictator can rise to power because of polarization. This is exemplified in a study that looked to see if the people are a good enough check on undemocratic behavior by politicians . The results disclosed that American voters place more value on a candidate’s policy and ideology than their democratic values. This shows that they have a limited ability in checking undemocratic practices . The study also discovered that due to polarization, political parties become tribalized, which leads to voters of one party viewing the possible election of a candidate from the opposite party as a threat. This would lead to them valuing ideology and party identification over a candidate’s democratic values, which shows that polarization worsens the people’s check on undemocratic politicians . Polarization does not seem like it is going away any time soon as Republicans and Democrats view each other as enemies and have a tribal like mentality about their respective party, which is why this could lead to another undemocratic president being elected.
Now that the plausibility for another undemocratic president being elected in the future has been established, the question arises of how they can use the Supreme Court as a tool for democratic erosion. Since Supreme Court justices can act autonomously in their decisions once they are confirmed to the bench, undemocratic political elites can entrust their policy preferences to these justices . President Trump appointed three different supreme court justices who most likely align with his ideology as he is the one that chose them, and if he won a second term, he could have used judicial review as a weapon by instilling his ideology to the justices. Also, even though he was voted out of office, President Trump has still preserved some of his political power through the justices he appointed . However, since he is no longer in office, democratic erosion can take place through the Supreme Court if another authoritarian president becomes elected. They can possibly confide in the justices that Trump appointed to advance their agenda. However, an undemocratic president might not have the ability to influence the justices if they value jurisprudence and resist powerful politicians . Nonetheless, it is very possible that justices will further the interests of authoritarian political elites because the judiciary is heavily influenced by the political environment they are in, and will unlikely resist powerful political elites . The judiciary typically sticks to the interests of political elites when dealing with big political questions, so an undemocratic president could trust in the Supreme Court to guard their interests . A president can also employ democrcoatic erosion through the Supreme Court by using their rulings to legitimize their policy as the Supreme Court is generally regarded as neutral . A ruler can also utilize the courts to avoid accountability as they can privately approve of the court’s rulings that protects their power without hurting their reputation .
Another president with the goal of consolidating power through democratic erosion can very reasonably be elected, and if this happens, they can use the Supreme Court in their favor as a political weapon.
 Varol, Ozan, “Stealth Authoritarianism,” Iowa Law Review, 2015.
I understand that the longevity of a justice’s appointment gives some durability to Trumpian policy and political preferences beyond his tenure in office. With that said, I would be curious to know more about the actual mechanism by which a future authoritarian president could try to coopt Trump’s three justices (Gorsuch, Kavanaugh and Barrett) into upholding or even implementing (through judicial review) their own anti-democratic preferences. It’s not clear to me that the judiciary, at least historically, actually does stick to the interests of political elites when dealing with salient questions. For example, we’ve already seen some of Trump’s justices vote against Trump’s explicit preferences, with Justice Gorsuch notably siding with the liberal wing on LGBTQ+ rights & Indigenous treaty rights. Justice Kavanaugh has also indicated he is likely to vote against striking down Obamacare. Given this history of justices ruling against the President who appointed them, I question what level of influence a future would-be authoritarian President could have over the justices given their life-terms and relative job security.
I agree with Nicholas Newton-Cheh on this matter. One benefit of having an independent Supreme Court is that once appointed, judges are largely insulated from a lot of political pressure, including from the President who appointed them. For instance, while it isn’t certain yet, it seems increasingly likely that the conservative Supreme Court won’t strike down Obamacare, despite the clear wishes of the Trump administration. If the Supreme Court can’t even be “trusted” to consistently bow to Trump’s policy preferences when he is in office, it is unlikely they will help undermine democracy when he is out of office.
America is very lucky to have a centuries-old institution of an independent judiciary. Personally I would be more cautious of efforts to mitigate the impact of Trump’s appointments, as those efforts could endanger our judicial independence and make it easier for a leader like Trump to actually control the judiciary in the future.
The President has also undoubtedly set a precedent to citizens in support of him that authoritarian moves like he makes are somehow still democratic. It baffles me to see how relentlessly his supporters will defend his democracy eroding actions, as they argue that a sitting president should be allowed that kind of power.
Many of Trump’s actions can be described as executive aggrandizement, which is when a leader will gradually undermine and weaken checks on their power that pose as opposition to that leader. Trump does this incessantly; he belittles political opponents, gaslights the public, slanders the integrity of media and press, and demonizes opposition. His appointment of supreme court justices is a big example of this, too. Trump has broken unspoken rules and precedents with his actions as president which will unfortunately have lasting ramifications with the polarization of American politics and view of democracy.