Consensus and uniform use of political norms by major actors in all branches of government is key to democratic survival. If our nation’s executives, legislators, and judges all simultaneously agreed to make the U.S. an authoritarian country, they could do so through seemingly democratic and constitutional means. Huqs and Ginsberg define constitutional retrogression as the simultaneous breakdown of three key aspects of democracy: competitive elections, civil rights, and the proper rule of law. While Alexander Hamilton famously referred to it as the “least dangerous branch”, the United States Supreme Court has exerted tremendous influence over critical moments in the nation’s history. The Court has time and time again cemented its role as the country’s primary voice on constitutional matters.
Autocrat-hopefuls frequently seek to utilize their constitutional court’s special role of judicial review and constitutional focus as a way to legitimize their actions. They can use a federal court’s duty to deem legislation constitutionally appropriate to help uphold their policy agenda and place of power. This notion was developed by Ozan Varol when defining aspects of stealth authoritarianism, a term describing democratic nations establishing authoritarianism through legal and constitutional means. If the party or person in power succeeds in exerting too much influence over the judicial system in a federal government, the submission of legislatures and bureaucrats becomes a much easier task.
Written here are a few notable examples of this strategy being utilized by well-known international leaders. After granting Russian federal courts the power to nullify local statutes inconsistent with the constitution, Putin used this seemingly positive power of judicial review to help consolidate his influence and authority across the lower levels of government. Other autocrats like Turkish President Tayyip Erdogan and former Peruvian President Alberto Fujimori sought complete control over their federal courts through constitutional changes and executive control over the nomination of new judges. While these specific examples accomplished different goals, they both show how a country’s federal court can be used to help politicians accomplish constitutional retrogression. Could similar events feasibly happen in the United States?
In recent history, the increased partisanship of American politics has led to a willingness to throw out political precedents related to the court. In 2016, the Republican-led Congress refused to let President Obama nominate Merrick Garland after the death of Antonin Scalia because it was too close to a presidential election. This decision was argued on the grounds of wanting to establish a new congressional precedent related to Supreme Court nominations. However, just four years later in 2020, Amy Coney Barrett was confirmed to the Court after the death of Justice Ruther Bader Ginsburg that September. Her passing was 7 months closer to a presidential election than Scalia’s.
The consequence of this strategically divisive behavior has been the establishment of a new 6-3 conservative bend on the Court and a stronger relationship between the justices and partisan politics. Recently, the court itself has shown an eagerness to throw out entrenched political precedent in the Dobbs decision wherein it invalidated the 14th amendment’s claim to an individual right to privacy. This decision threw out a constitutional precedent accepted by the court since Griswold in 1965. Justice Thomas has even shown an eagerness to formally extend this ruling to other judicial precedents related to this right to privacy such as contraceptive use and gay marriage.
This degradation of civil rights, along with the invalidation of long-instituted federal law hypothetically fits recent U.S. politics and the court pretty comfortably into two of the key categories needed for constitutional regression. Unfortunately, voting rights for minority groups are currently being threatened by Republican-led state legislatures across the country through voter ID and registration laws, and a large section of the GOP still refuses to accept the result of the 2020 presidential election. While the Supreme Court has the powers of judicial review necessary to invalidate many of these laws, the current conservative majority most likely has no intention of doing so. Competitive elections, civil rights, and the proper rule of law are all under attack in some way.
Historically speaking, the court has been inconsistent in its treatment of these issues. The Court allowed for the extension of civil rights to minority groups in Brown v. Board of Education but struck down key provisions of the 1866 Civil Rights Act and the 1965 Voting Rights Act. In regards to Huc and Ginsberg’s idea of the “rule of law,” the federal courts themselves serve a peculiar purpose. Having the power to interpret laws and statutes and make rulings in both criminal and civil cases gives these judges the responsibility of literally defining what the “rule of law” should look like.
The Court’s decision to invalidate the previous precedent in Dobbs is not unique, the Court has reversed many prior decisions throughout its long history. What is peculiar however is that this decision came at the same time as the previously discussed efforts to crack down on voting rights and the Trump-led controversy surrounding the integrity of our elections as a whole. To the third-party observer, it could certainly look like the GOP’s current platform relies upon constitutional regression and stealth authoritarian strategies. While the Supreme Court, as a democratic and constitutional body, should theoretically strive to stand against these efforts, it seems that political polarization and the Trump era of American politics may have affected the courts just as much as the legislature.