The constitution, written in 1787, is considered a failproof document that lays the very foundations for democracy. The document was intended to be amendable and reconstructed throughout time. Despite this intent, many right-wing politicians are eager to interpret it for “original meaning”, claiming the original writing is what makes the document “exceptional”. With democratic erosion occurring globally today, depending on the constitution to protect the United States from backsliding from democracy is, unfortunately, a dangerous course. It takes active effort and amending to protect democracy and signs of erosion are already occurring in the United States. Ozan Valor develops the concept of “stealth authoritarianism” to explain the insidious ways in which democracy is threatened today. The Supreme Court today demonstrates how American democracy may be under siege.
The process of judicial review is articulated by Valor as a key feature of a healthy functioning democracy (Valor 2015). Within the United States, judicial review has recently been corrupted by politicized Court appointments. The Court has been used to extend executive power in its scope and far past a president’s term. Trump’s appointees could be in office for the remainder of their lives and may continue to advance his political agenda. The Court cannot provide an unbiased check on the validity and constitutionality of legislation and its enforcement if it is politicized. The President is responsible for nominating candidates to the court, which can give them an avenue to promote their policies far beyond their four-year term. When the appointment is left in the hands, and orchestrated by, an authoritative president, such as Trump, that power can be abused to consolidate and extend the executive power. Trump’s appointees to the Supreme Court have demonstrated this danger, as they work to undermine some basic rights of American citizens. During one presidential term, Trump transformed a fairly neutral Court into a politicized right-wing one. Although Trump’s term is over, due to the potentially lifelong terms of Supreme Court Justices his views may still be perpetrated for the remainder of the life of his judicial appointees.
The Supreme Court was designed for the purpose of judicial review, but with a legislature that is unproductive and limited, the Court may now serve an added purpose of creating legislation, instead of just reviewing it. Due to extreme polarization within Congress and the Senate, and the power of the filibuster, the legislature is not able to produce laws at an adequate speed. This opens the way for the enforcement and regulation of these laws to migrate to different branches of government, granting the Executive and Judicial branches an inappropriate and excessive amount of power. This centralization of power is something that Valor provides as evidence for stealth authoritarianism (Valor 2015). The United States is suffering from both of these attacks on its democracy right now, putting it at risk of rapid democratic erosion. Many argue that the Supreme Court justices currently have more power than Congress when it comes to implementing laws. This undermines democracy because they were not elected by the people. The increased power of the court combined with its declining neutrality poses a huge risk to human rights in America.
The draft leaked from the Supreme Court in April 2022 demonstrates the dangers of this politicized court. The very leaking of a draft shows a deterioration of the Court’s validity. The draft exploits democratic vocabulary in its attempts to diminish the rights of citizens. The Court claimed that by overturning Roe V Wade they were preserving democratic values, by granting states the ability to determine reproductive rights. The Justices argue that their decision gives more voice to the people, by granting more rights to the states. This language is deceptive, for overturning Roe V. Wade will restrict the basic rights of all people capable of becoming pregnant. The court ruled that overturning Roe V Wade, will allow “the people” to decide the fate of their laws. This argument is inherently flawed, as non-male identifying citizens and minorities are not given an equal voice within our society: leaving the determination of basic rights up to “the people” risks restricting these rights. The far right politicized Court, currently in power puts all minorities at risk. If Roe V. Wade is overturned, it will disproportionately impact low-income women. The Court is a majority of privileged white men and they are making key decisions that will most impact these women. This underrepresentation, together with the power of the court, provides evidence of democratic erosion within the United States. The restricting of reproductive rights is only the beginning. The court has also begun some efforts to push legislation harming transgender rights.
The lack of checks on the Supreme Court, the unproductive and partisan legislature, and Trump’s far-right appointments to the Court has created the conditions where basic human rights in the United States are now under attack. The lifelong appointees serving on the Court right now could be devastating for our democracy if left unchecked.
Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review Download “Stealth Authoritarianism.” Iowa Law Review100(4): pp. 1673-1718. Parts I, II and III.
*Photo by Sally Carlstrom, “Protestors Downtown San Diego, May 4, 2022”, Creative Commons Zero license.